Uniform Civil Procedure Rules 2005

Part 1 Preliminary

Division 1 General

1.1 Name of rules

These rules are the Uniform Civil Procedure Rules 2005.

1.2 Definitions

(1)  Words and expressions that are defined in the Dictionary at the end of these rules have the meanings set out in the Dictionary.

(2)  Notes included in these rules do not form part of these rules.

Note—

In the notes, DCR means the District Court Rules 1973, LCR means the Local Courts (Civil Claims) Rules 1988 and SCR means the Supreme Court Rules 1970.

1.3 References to barristers and solicitors

(1)  For the purposes of these rules:

(a)  a reference in these rules to a barrister is a reference to a legal practitioner who practises as a barrister, and

(b)  a reference in these rules to a solicitor is a reference to a legal practitioner who practises as a solicitor.

Note—

The rights of a person to practise as a barrister or to practise as a solicitor are regulated by the Legal Profession Act 2004.

(2)  For the purposes of rule 33.9 (9), a reference to a solicitor for a party includes a reference to:

(a)  a solicitor acting as agent for the solicitor for a party, and

(b)  any other solicitor belonging to or employed by the same firm or organisation as the solicitor for a party or the solicitor acting as agent for the solicitor for a party.

(3)  For the purposes of rule 33.9 (10):

(a)  a reference to a solicitor who removes a document or thing from the office of the registrar includes a reference to a solicitor who directs a person referred to in paragraph (b) to remove a document or thing from the office of the registrar, and

(b)  a reference to the personal custody of the solicitor includes a reference to the personal custody of:

(i)  any other solicitor belonging to or employed by the same firm or organisation as that solicitor, or any other person employed by that firm or organisation, and

(ii)  any other solicitor acting as agent for that solicitor, and

(iii)  any other solicitor belonging to or employed by the same firm or organisation as a solicitor acting as agent for that solicitor, or any other person employed by that firm or organisation, and

(iv)  if the registrar has approved a firm or organisation to provide photocopying services in respect of documents, any employee of a firm or organisation so approved.

rule 1.3: Am 2006 (288), Sch 1 [1]; 2006 (716), Sch 1 [1]–[4].

1.4 Saving as to discovery (cf SCR Part 1, rule 14)

These rules do not affect the right of any person to commence proceedings for discovery.

1.5 Application of these rules

(1)  Subject to subrule (2), these rules apply to each court referred to in Column 1 of Schedule 1 in relation to civil proceedings of a kind referred to in Column 2 of that Schedule.

(2)  In respect of each court referred to in Column 1 of Schedule 1, civil proceedings of a kind referred to in Column 2 of that Schedule are excluded from the operation of each provision of these rules referred to in Column 4 of that Schedule in respect of those proceedings.

(3)  The exclusion of civil proceedings from any such provision is subject to such conditions, limitations or exceptions as are specified in Column 4 of Schedule 1 in relation to that provision.

rule 1.5: Am 2009 (570), Sch 1 [1].

1.6 Exclusion of provisions of Civil Procedure Act 2005

In respect of each court referred to in Column 1 of Schedule 1:

(a)  civil proceedings of a kind referred to in Column 2 of that Schedule are excluded from the operation of the provisions of Parts 3–9 of the Civil Procedure Act 2005 referred to in Column 3 of that Schedule in respect of those proceedings, and

(b)  the following proceedings, to the extent to which they are civil proceedings, are excluded from all of Parts 3–9 of the Civil Procedure Act 2005:

(i)  proceedings under the Mental Health (Criminal Procedure) Act 1990,

(ii)  proceedings under the Habitual Criminals Act 1957,

(iii)  proceedings under the Bail Act 1978,

(iv)  proceedings under the Crimes (Domestic and Personal Violence) Act 2007,

(v)  proceedings under Part 4 of the Victims Support and Rehabilitation Act 1996.

rule 1.6: Am 2009 (88), Sch 1 [1].

1.7 Local rules that prevail over these rules

The rules of court specified in Schedule 2 prevail over these rules.

1.8 Determination of questions arising under these rules (cf SCR Part 23, rule 4 (b) and (d))

The court may determine any question arising under these rules (including any question of privilege) and, for that purpose:

(a)  may inspect any document in relation to which such a question arises, and

(b)  if the document is not before the court, may order that the document be produced to the court for inspection.

1.9 Objections to production of documents and answering of questions founded on privilege (cf SCR Part 36, rule 13; DCR Part 28, rule 16)

(1)  This rule applies in the following circumstances:

(a)  if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer,

(b)  if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer,

(c)  if a question is put to a person in the course of an examination before the court or an authorised officer.

(2)  In subrule (1), authorised officer means:

(a)  any officer of the court, or

(b)  any examiner, referee, arbitrator or other person who is authorised by law to receive evidence.

(3)  A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information.

(4)  A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled.

(5)  For the purpose of ruling on the objection:

(a)  evidence in relation to the claim of privilege may be received from any person, by affidavit or otherwise, and

(b)  cross-examination may be permitted on any affidavit used, and

(c)  in the case of an objection to the production of a document, the person objecting may be compelled to produce the document.

(6)  This rule does not affect any law that authorises or requires a person to withhold a document, or to refuse to answer a question, on the ground that producing the document, or answering the question, would be injurious to the public interest.

rule 1.9: Subst 2005 (396), Sch 1 [1]. Am 2009 (88), Sch 1 [2].

1.10 (Repealed)

rule 1.10: Rep 2010 (279), Sch 1 [1].

1.10A Powers of associate Judges of the Supreme Court (cf SCR Part 60, rule 1A)

(1)  Subject to subrule (2), an associate Judge of the Supreme Court may exercise any of the powers of the Court under the Civil Procedure Act 2005, or under rules of court, in relation to defamation proceedings.

(2)  An associate Judge may not exercise the power conferred by rule 29.15 or 29.16 in relation to any such proceedings.

Note—

Section 118 of the Supreme Court Act 1970 sets out the powers exercisable by an associate Judge. Those powers include powers conferred by rules of court. In addition to the power conferred by this rule, see rule 1A of Part 60 of the Supreme Court Rules 1970, together with Schedule D to those rules, for other powers of the Supreme Court that may be exercised by an associate Judge.

rule 1.10A: Ins 2005 (807), Sch 1 [1].

1.10B When Part 11A concerning service under Hague Convention has effect

The provisions of Part 11A have effect on and from the day on which the Hague Convention enters into force for Australia.

rule 1.10B: Ins 2009 (326), Sch 1 [1].

Division 2 Time

1.11 Reckoning of time (cf SCR Part 2, rule 2; DCR Part 3, rule 1; LCR Part 4, rule 1)

(1)  Any period of time fixed by these rules, or by any judgment or order of the court or by any document in any proceedings, is to be reckoned in accordance with this rule.

(2)  If a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted.

(3)  If, apart from this subrule, the period in question, being a period of 5 days or less, would include a day or part of a day on which the registry is closed, that day is to be excluded.

(4)  If the last day for doing a thing is, or a thing is to be done on, a day on which the registry is closed, the thing may be done on the next day on which the registry is open.

(5)  Section 36 of the Interpretation Act 1987 (which relates to the reckoning of time) does not apply to these rules.

1.12 Extension and abridgment of time (cf SCR Part 2, rule 3; DCR Part 3, rule 2; LCR Part 4, rule 2)

(1)  Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2)  The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.

rule 1.12: Am 2007 (449), Sch 1 [1].

1.13 Fixing times (cf SCR Part 2, rule 4; DCR Part 3, rule 3; LCR Part 4, rule 3)

If no time is fixed by these rules, or by any judgment or order of the court, for the doing of any thing in or in connection with any proceedings, the court may, by order, fix the time within which the thing is to be done.

Division 3 Fees and other amounts

1.14 Prescribed fees and other amounts

The fees and other amounts prescribed by these rules are set out in Schedule 3.

1.15 Fees chargeable under the Oaths Act 1900

The fees chargeable under section 28 of the Oaths Act 1900 are set out in item 1 of Schedule 3.

Division 4 Distribution of business between Divisions of Supreme Court

pt 1, div 4 (rules 1.16–1.21): Ins 2006 (391), Sch 1 [1].

1.16 Assignment of business to Divisions (cf SCR Part 12, rule 1 (1))

Proceedings in the Supreme Court:

(a)  under an Act or instrument referred to in Column 1 of Part 1 or 2 of Schedule 8, or

(b)  under a provision referred to in Column 2 of that Part in respect of such an Act or instrument,

are assigned to the Division of the Court referred to in Column 3 of that Part in respect of that Act, instrument or provision.

pt 1, div 4 (rules 1.16–1.21): Ins 2006 (391), Sch 1 [1].

1.17 Bulk transfers between Supreme Court Divisions (cf SCR Part 14A, rule 7)

The Supreme Court may of its own motion, by a single order, direct that proceedings of a specified type be transferred between the Common Law Division and the Equity Division.

pt 1, div 4 (rules 1.16–1.21): Ins 2006 (391), Sch 1 [1].

1.18 Assignment of business to Common Law Division (cf SCR Part 12, rule 1 (3))

The following proceedings in the Supreme Court are assigned to the Common Law Division:

(a)  proceedings for a debt arising under any Act (including any Commonwealth Act) by which any tax, fee, duty or other impost is collected or administered by or on behalf of the State or the Commonwealth,

(b)  proceedings on an appeal or application to the Court:

(i)  in respect of a decision of a public body (other than a court or tribunal) or public officer (other than an officer of a court or tribunal), or

(ii)  for the removal into the Court of any matter before a public body (other than a court or tribunal) or public officer (other than an officer of a court or tribunal),

(c)  proceedings on an appeal or application to the Court in respect of:

(i)  a decision of a public body constituted or established by or under a Commonwealth Act (other than a court exercising federal jurisdiction within the meaning of section 26 of the Acts Interpretation Act 1901 of the Commonwealth), or

(ii)  a decision of a person holding or acting in a public office under a Commonwealth Act (other than an officer of a court referred to in subparagraph (i)),

(d)  subject to section 53 of the Supreme Court Act 1970, proceedings that are not assigned to the Equity Division by these rules.

pt 1, div 4 (rules 1.16–1.21): Ins 2006 (391), Sch 1 [1].

1.19 Assignment of business to Equity Division (cf SCR Part 12, rule 5 (b))

The following proceedings in the Supreme Court are assigned to the Equity Division:

(a)  proceedings on an application for a writ of habeas corpus ad subjiciendum in respect of a minor,

(b)  proceedings for orders for the custody of and access to minors,

(c)  proceedings on an appeal to the Court in a Division in proceedings between husband and wife or parent and child,

(d)  proceedings for orders under and provision by or under any Act that a debenture or bond issued by a corporation constituted by that Act, or a coupon annexed to that debenture or bond, has been lost or destroyed or defaced and directions by or under that Act for advertisement relating to that debenture, bond or coupon,

(e)  proceedings for orders under any provision made by or under any Act for the appointment of a receiver of the income of a corporation which is constituted by that Act and which makes default in payment to the holder of any debenture, or coupon, issued or stock inscribed by that corporation,

(f)  proceedings in relation to any provision in any Act or Commonwealth Act by which a tax, fee, duty or other impost is levied, collected or administered by or on behalf of the State or the Commonwealth (other than proceedings for debt that are assigned to the Common Law Division by rule 1.18 (a)).

pt 1, div 4 (rules 1.16–1.21): Ins 2006 (391), Sch 1 [1].

1.20 Declarations of right and injunctions (cf SCR Part 12, rule 3)

Proceedings need not be assigned to the Equity Division solely because a declaration of right or an injunction is claimed in the proceedings.

pt 1, div 4 (rules 1.16–1.21): Ins 2006 (391), Sch 1 [1].

1.21 Removal to Court of Appeal (cf SCR Part 12, rule 2)

(1)  The Supreme Court in a Division may, in relation to proceedings commenced in the Division, make an order that the proceedings be removed into the Court of Appeal:

(a)  if it makes an order under rule 28.2 for the decision of a question of law, or

(b)  if, having stated the question to be decided or determined, it is satisfied that special circumstances exist that render it desirable to make an order for their removal into the Court of Appeal.

(2)  If an order is made under subrule (1):

(a)  the Court of Appeal may order that the whole or any part of the proceedings be remitted to a Division for the determination, by trial or otherwise, of the proceedings or of any question arising in the proceedings, or

(b)  the proceedings may be continued and disposed of in the Court of Appeal.

(3)  Proceedings may be removed into the Court of Appeal under subrule (1) even if any decision or determination in the proceedings is expressed by any Act or law to be final or without appeal.

(4)  In this rule, question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

pt 1, div 4 (rules 1.16–1.21): Ins 2006 (391), Sch 1 [1].

Division 5 Notices under section 78B of Judiciary Act 1903 of Commonwealth

pt 1, div 5 (rules 1.22–1.25): Ins 2006 (716), Sch 1 [5].

1.22 Notice of constitutional matter (cf Federal Court Rules , Order 51, rule 1)

(1)  If proceedings pending in a court involve a matter arising under the Commonwealth Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903 of the Commonwealth, the party whose case raises the matter must file a notice of a constitutional matter.

Note—

Section 78B of the Judiciary Act 1903 of the Commonwealth provides that if a cause is pending in a State court that involves a matter arising under the Commonwealth Constitution or involving its interpretation, the court is under a duty not to proceed in the cause unless or until it is satisfied that notice of the cause and the matter raised in the cause has been served on the Attorneys-General of the Commonwealth and the States.

The purpose of such a notice is to afford the Attorneys-General a reasonable time to consider whether or not they wish to intervene in the proceedings or to have the cause removed into the High Court for determination.

(2)  Notice of a constitutional matter must state:

(a)  specifically the nature of the matter, and

(b)  facts showing the matter is one to which subrule (1) applies.

pt 1, div 5 (rules 1.22–1.25): Ins 2006 (716), Sch 1 [5].

1.23 Time for filing and service of notice of constitutional matter (cf Federal Court Rules , Order 51, rule 2)

(1)  The party whose case raises the constitutional matter, or such other party as the court may direct, must file notice of a constitutional matter and serve a copy of the notice on all other parties and the Attorneys-General of the Commonwealth, the States, the Australian Capital Territory and the Northern Territory:

(a)  if the matter arises before any directions hearing or case management conference in the proceedings, not later than 2 days before the date of that hearing or conference, or

(b)  if no directions hearing or case management conference has been fixed or is imminent, as soon as practicable, or

(c)  if the matter arises at a hearing, within such time as the court directs.

(2)  As soon as practicable after a party files and serves a notice in the circumstances referred to in subrule (1) (b), the party must apply to the court for directions.

pt 1, div 5 (rules 1.22–1.25): Ins 2006 (716), Sch 1 [5].

1.24 Affidavit of service (cf Federal Court Rules , Order 51, rule 3)

The party whose case raises a constitutional matter must file an affidavit of service of each notice required to be served under rule 1.23, and must do so promptly after the notice is served.

pt 1, div 5 (rules 1.22–1.25): Ins 2006 (716), Sch 1 [5].

1.25 Documents for intervening Attorneys-General (cf Federal Court Rules , Order 51, rule 4)

The party whose case raises a constitutional matter must provide copies of any other documents that have been filed in the proceedings and that are relevant to the matter to any intervening Attorney-General as soon as practicable after notice of the intervention is given to the party.

pt 1, div 5 (rules 1.22–1.25): Ins 2006 (716), Sch 1 [5].

Division 6 Procedure in particular circumstances

pt 1, div 6 (rules 1.26, 1.27): Ins 2008 (338), Sch 1 [1].

1.26 Procedure under particular Acts

(1)  The provisions of Schedule 10 apply to proceedings under the Acts referred to in that Schedule.

(2)  A reference in any such provision to “the Act” is a reference to the Act referred to in the heading beneath which that provision appears.

pt 1, div 6 (rules 1.26, 1.27): Ins 2008 (338), Sch 1 [1].

1.27 Procedure in particular District Court lists

The provisions of Schedule 11 apply to proceedings in the District Court that are assigned to the Coal Miners’ Workers Compensation List or the Special Statutory Compensation List.

pt 1, div 6 (rules 1.26, 1.27): Ins 2008 (338), Sch 1 [1].

Part 2 Case management generally

2.1 Directions and orders (cf SCR Part 26, rule 1)

The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.

Note—

See also the guiding principles in relation to the conduct of court proceedings (set out in Division 1 of Part 6 of the Civil Procedure Act 2005) and the general powers of the court to give directions (set out in Division 2 of that Part).

2.2 Appointment for hearing (cf SCR Part 26, rule 2)

The court may, at any time and from time to time, of its own motion, appoint a date for a hearing at which it may give or make the directions or orders referred to in rule 2.1.

2.3 Case management by the court (cf SCR Part 26, rule 3)

Without limiting the generality of rule 2.1, directions and orders may relate to any of the following:

(a)  the filing of pleadings,

(b)  the defining of issues, including requiring the parties, or their legal practitioners, to exchange memoranda in order to clarify questions,

(c)  the provision of any essential particulars,

(d)  the filing of “Scott Schedules” referred to in rule 15.2,

(e)  the making of admissions,

(f)  the filing of lists of documents, either generally or with respect to specific matters,

(g)  the delivery or exchange of experts’ reports and the holding of conferences of experts,

(h)  the provision of copies of documents, including their provision in electronic form,

(i)  the administration and answering of interrogatories, either generally or with respect to specific matters,

(j)  the service and filing of affidavits, witness statements or other documents to be relied on,

(k)  the giving of evidence at any hearing, including whether evidence of witnesses in chief must be given orally, or by affidavit or witness statement, or both,

(l)  the use of telephone or video conference facilities, video tapes, film projection, computer and other equipment and technology,

(m)  the provision of evidence in support of an application for an adjournment or amendment,

(n)  a timetable with respect to any matters to be dealt with, including a timetable for the conduct of any hearing,

(o)  the filing of written submissions.

Part 3 Electronic case management

3.1 Definitions

(1)  In this Part:

ECM system means an electronic case management system established under section 14B of the Electronic Transactions Act 2000.

registered user means a person who is registered as a user of the ECM system under rule 3.3.

(2)  In this Part, a reference to filing a document in the court includes a reference to any other method of sending a document to the court.

3.2 Application of Part

This Part applies to those courts, and for those purposes, for which the use of an ECM system is authorised by an order in force under section 14C of the Electronic Transactions Act 2000.

3.3 Registration of users

(1)  The registrar of the court may register any person as a user of the ECM system in relation to the court, either generally or for particular proceedings, and may specify the level of access to which the person is entitled, and the conditions of use applicable to the person, as a registered user of the system.

(2)  Subject to any order of the court, a person may not be registered as a user of the ECM system for particular proceedings unless the person is:

(a)  a party to the proceedings, or

(b)  a legal practitioner representing a party to the proceedings, or

(c)  a person authorised to use the ECM system in relation to the proceedings by a legal practitioner representing a party to the proceedings, or

(d)  a person who, pursuant to rule 4.4 (1) (b) or 4.4 (3), is authorised to sign documents on behalf of a party in proceedings in the Local Court, but only in connection with proceedings and matters in relation to which that paragraph or subrule authorises documents to be so signed.

(3)  The senior judicial officer of the court may establish a protocol for the registration of persons as users of the ECM system, either generally or for particular proceedings.

(4)  Such a protocol may provide for the automatic registration of particular classes of persons as users of the ECM system, and for the automatic specification of the level of access to which persons of such a class are entitled and the conditions of use applicable to persons of such a class as registered users of the system.

(5)  In relation to any proceedings before the court, the level of access to the ECM system to which a registered user is entitled, and the conditions of use applicable to a registered user, are subject to any order of the court.

rule 3.3: Am 2009 (166), Sch 1 [1].

3.4 Electronic filing of documents

(1)  This rule applies:

(a)  in relation to proceedings in any court other than the Land and Environment Court, to documents of a kind referred to in Part 1 of Schedule 4, and

(b)  in relation to proceedings in the Land and Environment Court, to documents of a kind referred to in Part 2 of Schedule 4.

(2)  In any proceedings, a document so specified may be filed in the court on behalf of a party, by means of the ECM system, by any registered user for the proceedings who is:

(a)  a person who is authorised by rule 4.4 to sign documents on the party’s behalf, or

(b)  a person who has been directed to file the document by a person who is so authorised.

(2A)  When filed by means of the ECM system, a document that is required to be signed by a person is taken:

(a)  to have been duly signed for the purposes of rule 4.4, and

(b)  to have been duly authenticated for the purposes of section 14E of the Electronic Transactions Act 2000,

if the person’s name is printed where his or her signature would otherwise appear.

(3)  A document that is filed by means of the ECM system is to be given initial acceptance as soon as it is received by the court, and is to be given final acceptance as soon as it is validated by the court.

(4)  Without limiting any other ground on which it may be refused, validation is to be refused if any fee payable with respect to the filing of a document is not received by the court within 24 hours after the document’s initial acceptance.

(5)  A document that is filed by means of the ECM system is taken to have been filed when it is given final acceptance and, when given final acceptance, is taken to have been filed at the time it was given initial acceptance.

(6)  Notice of the initial and final acceptance of a document, and of the dates of those acceptances, is to be given, by means of the ECM system, to the registered user by whom the document was filed.

(7)  The date and time at which initial or final acceptance was given must be set out in the notice referred to in subrule (6).

rule 3.4: Am 2005 (625), Sch 1 [1]; 2007 (580), Sch 1 [1].

3.4A Written record to be kept of direction to e-file document

(1)  A person who directs that a document be filed as referred to in rule 3.4 (2) (b) must make a written record of the fact that he or she has given such a direction.

(2)  If the person by whom the direction was given is a legal practitioner, the legal practitioner is taken:

(a)  to have affirmed to the court that he or she has given the direction, and

(b)  to have undertaken to the court that, if the court so directs, he or she will produce to the court the written record referred to in subrule (1).

(2A)  If the person by whom the direction was given is a person who, pursuant to rule 4.4 (1) (b) or 4.4 (3), is authorised to sign documents on behalf of a party in proceedings in the Local Court, that person is taken:

(a)  to have affirmed to the court that he or she has given the direction, and

(b)  to have undertaken to the court that, if the court so directs, he or she will produce to the court the written record referred to in subrule (1).

(2B)  If in any proceedings in which a document has been filed as referred to in rule 3.4 (2) (b) the court directs production of the written record referred to in subrule (1), it may also stay the proceedings until the record is produced.

(3)  A written direction for the purposes of rule 3.4 (2) (b) is taken to be a written record for the purposes of this rule.

rule 3.4A: Ins 2005 (625), Sch 1 [2]. Am 2009 (166), Sch 1 [2].

3.5 Filing of affidavits

(1)  This rule applies to an affidavit that is filed in the court by means of the ECM system.

(2)  In the case of an affidavit filed by a legal practitioner, the legal practitioner is taken:

(a)  to have affirmed to the court that he or she has possession of the original affidavit, and

(b)  to have undertaken to the court that, if the court so directs, he or she will file the original affidavit in accordance with the court’s directions.

(3)  In the case of an affidavit filed otherwise than by a legal practitioner, the original affidavit must be filed in the court:

(a)  if a practice note so requires or the court so directs, and

(b)  if so required or directed, within the time limited by the relevant practice note or direction.

(4)  Any document referred to in an affidavit that cannot be filed by means of the ECM system is taken to be an exhibit, and not an annexure, regardless of the terms of the affidavit.

3.6 Filing of wills

(1)  This rule applies to a will that is required to be filed in the court together with an application for probate of the will, or for administration of a person’s estate with the will annexed, if the application is, but the will is not, filed by means of the ECM system.

(2)  A will to which this rule applies must be filed in the court:

(a)  at least 2 days before the date of the next hearing in the proceedings in which the will is intended to be used, or

(b)  within 7 days after the date on which the application is filed by means of the ECM system, or

(c)  within such earlier time as the court may by order direct,

whichever first occurs.

(3)  If the application is filed by a legal practitioner, the legal practitioner is taken:

(a)  to have affirmed to the court that he or she has possession of the will, and

(b)  to have undertaken to the court that, if the court so directs, he or she will file the will in accordance with the court’s directions.

3.7 Electronic issuing of a document

(1)  The court may, by means of the ECM system, issue a document to any party who is a registered user for the proceedings.

(2)  The date and time at which the document was issued must be set out in the document.

(3)  When issued by means of the ECM system, a document that is required to be signed by a person is taken to have been duly authenticated for the purposes of section 14E of the Electronic Transactions Act 2000 if the person’s name is printed where his or her signature would otherwise appear.

rule 3.7: Am 2008 (338), Sch 1 [2].

3.8 Electronic service of a document

A party to any proceedings before the court may use electronic mail to serve a document on any other party to the proceedings, whether by means of the ECM system or otherwise, but only with the consent of the other party.

3.9 Use of ECM system in business conducted in the absence of the public

(1)  Any business that, pursuant to section 71 of the Civil Procedure Act 2005, may be conducted in the absence of the public may be conducted by electronic communication sent and received by means of the ECM system, as provided by section 14I of the Electronic Transactions Act 2000.

(2)  A legal practitioner who is a registered user for any proceedings may participate in any such business:

(a)  directly (the legal practitioner sends a communication in his or her own name), or

(b)  indirectly (someone authorised by the legal practitioner sends a communication in the legal practitioner’s name).

(3)  A legal practitioner who authorises someone else to send a communication, as referred to in subrule (2) (b), is taken to have affirmed to the court that he or she has actual knowledge of the contents of the communication.

rule 3.9: Am 2005 (625), Sch 1 [3].

Part 4 Preparation and filing of documents

Division 1 Preparation of documents generally

4.1 Application of Division

This Division applies to and in respect of any document that is prepared by or on behalf of a person (whether or not a party) for use in proceedings.

4.2 Documents to be filed to contain certain information (cf SCR Part 1, rule 10, Part 7, rule 2, Part 11, rule 4, Part 65, rule 1; DCR Part 5, rule 2; LCR Part 36, rule 7)

(1)  Originating process filed on behalf of a party in any proceedings must contain the following information:

(a)  the name of the court in which the proceedings are to be commenced,

(b)  if relevant, the division in which the proceedings are intended to be heard,

(b1)  if relevant, the list in which the proceedings are intended to be entered,

(c)  the venue at which the proceedings are intended to be heard,

(d)  the title of the proceedings,

(e)  the nature of the process (summons or statement of claim),

(e1)  if the party has engaged a solicitor to act as the party’s legal representative, the name of the solicitor,

(f)  if the process is filed by a person who is neither the party nor the party’s solicitor or solicitor’s agent, the capacity in which the person acts when filing the document,

(g)  the party’s address and the party’s address for service,

(h)  the address, if known, of any defendant.

Note—

A solicitor named on the originating process pursuant to paragraph (e1) is thereby the solicitor on the record in relation to the party on whose behalf the process is filed.

(2)  A document filed on behalf of a person in relation to any proceedings (other than originating process) must contain the following information:

(a)  the title of the proceedings, as appearing on the originating process for the proceedings,

(b)  if relevant, the division in which the proceedings are intended to be heard,

(b1)  if relevant, the list in which the proceedings are intended to be entered,

(c)  the case number for the proceedings, as appearing on the originating process for the proceedings,

(d)  the nature of the document,

(d1)  if the person has engaged a solicitor to act as the person’s legal representative, the name of the solicitor,

(e)  if the document is filed by a person who is neither a party nor a party’s solicitor or solicitor’s agent, the capacity in which the person acts when filing the document,

(f)    (Repealed)

Note 1—

In relation to paragraph (c), see rule 9.1 (4) and (5) which require cross-claims to be numbered.

Note 2—

A solicitor named in the document pursuant to paragraph (d1) is thereby the solicitor on the record in relation to the party on whose behalf the document is filed.

(3)  The originating process and any such document may also contain the DX address, fax number or electronic mail address of the person, the person’s solicitor or the person’s solicitor’s agent.

(3A)  Court documentation within the meaning of section 347 (Restrictions on commencing proceedings without reasonable prospects of success) of the Legal Profession Act 2004 that is not required by that section to be certified must include a statement to the effect that it is not required to be so certified.

(3B)  Subrule (3A) does not apply to documents that are filed in the Land and Environment Court in relation to proceedings in Class 1, 2 or 3 of that Court’s jurisdiction.

(4)  In this rule, originating process does not include any process (such as a statement of cross-claim or cross-summons) by which a cross-claim is made.

rule 4.2: Am 2005 (395), Sch 1 [1]–[4]; 2005 (625), Sch 1 [4]; 2005 (717), Sch 1 [1] [2]; 2006 (391), Sch 1 [2] [3]; 2007 (579), Sch 1 [1] [2]; 2008 (338), Sch 1 [3]; 2008 (494), Sch 1 [1] [2]; 2009 (88), Sch 1 [3] [4].

4.2A List of parties

(1)  In any proceedings in which there are more than 2 plaintiffs, or more than 2 defendants, the plaintiff must file, together with the originating process, a list of parties.

(2)  In any proceedings in which there is a cross-claim brought by more than 2 cross-claimants, or to which there are more than 2 cross-defendants, or against a cross-defendant who is not already a party to the proceedings, the cross-claimant must file with the statement of cross-claim or cross-summons:

(a)  if no list of parties has yet been filed in the proceedings, a list of parties, or

(b)  if a list of parties has already been filed in the proceedings, an amended list of parties.

(3)  In any proceedings in which a list of parties has been filed, any party who files a document that effects a change of parties (including a change that involves the addition of a party who is not already a party to the proceedings) must file, together with the document, an amended list of parties.

rule 4.2A: Ins 2007 (579), Sch 1 [3]. Subst 2009 (88), Sch 1 [5].

4.3 Paper and writing (cf SCR Part 65, rule 2; DCR Part 47, rule 3; LCR Part 36, rule 4)

(1)  A document must be on standard A4 paper of durable quality, capable of receiving ink writing.

(2)  Subject to the rules:

(a)  a document may be one-sided (that is, with writing on one side of each sheet) or two-sided (that is, with writing on both sides of each sheet), but not partly one-sided and partly two-sided, and

(b)  the sheets of a document must be securely fastened:

(i)  if the document is one-sided, at the top left hand corner, or

(ii)  it the document is two-sided, along the left hand side,

without obscuring the writing or the margin, and

(c)  a left margin of at least 25 millimetres, and a top margin of 30 millimetres, must be kept clear on each sheet of a document that bears writing, and

(d)  the pages of a document (that is, the sides of the sheets that bear writing) must be consecutively numbered.

(3)  The spacing between the lines of writing in a document must be at least 3 millimetres.

(3A)  The following information in a document must be set out in bold:

(a)  the name of the first plaintiff and first defendant in the title of the proceedings,

(b)  in the case of a cross-claim, the name of the first cross-claimant and first cross-defendant in the title to the proceedings,

(c)  in the case of a notice of motion, the name of the person affected by the orders sought,

(d)  in all cases, the name of the person specified in the filing details as the person for whom the document is filed.

Note—

Rule 4.2 requires the title of proceedings to be included in the originating process or other documents filed on or behalf of a person in proceedings.

(4)  A document must bear writing that is clear, sharp, legible and permanent, must not be a carbon copy and must not bear any blotting, erasure or alteration that causes material disfigurement.

(5)  This rule does not apply to a document to the extent to which the nature of the document renders compliance impracticable.

rule 4.3: Am 2005 (717), Sch 1 [3]; 2005 (808), Sch 1 [1]; 2007 (579), Sch 1 [4] [5].

4.4 Signing documents (cf SCR Part 65, rule 8, Part 66, rule 9; DCR Part 47, rule 5; LCR Part 36, rule 6)

(1)  If, in any proceedings, a document is required to be signed by a party:

(a)  in the case of a party who is represented by a solicitor, the document may not be signed by the party but must instead be signed:

(i)  by the party’s solicitor, or

(ii)  by a solicitor acting as agent for the party’s solicitor, or

(iii)  by some other solicitor belonging to or employed by the same firm or organisation as the party’s solicitor or party’s solicitor’s agent, and

(b)  in the case of a party who is not represented by a solicitor, the document may be signed by the party and may also be signed by any other person who is authorised by these rules to commence proceedings on the party’s behalf.

(2)  Subrule (1) is subject to the requirements of rule 35.3.

(3)  Despite subrule (1), a document prepared on behalf of a party in proceedings in the Local Court may instead be signed:

(a)  by a commercial agent with respect to debt collection (within the meaning of the Commercial Agents and Private Inquiry Agents Act 2004), in relation only to proceedings on an application for:

(i)  an instalment order, or

(ii)  an order for examination, or

(iii)  a writ of execution, or

(iv)  a garnishee order, or

(b)  by a person holding a licence as a real estate agent, strata managing agent or on-site residential property manager within the meaning of the Property, Stock and Business Agents Act 2002 in relation only to:

(i)  proceedings on an application referred to in paragraph (a), or

(ii)  the filing of a certificate under section 51 of the Consumer, Trader and Tenancy Tribunal Act 2001.

rule 4.4: Am 2005 (625), Sch 1 [5] [6]; 2006 (288), Sch 1 [2]; 2006 (716), Sch 1 [6].

4.5 Address for service (cf SCR Part 9, rule 6; DCR Part 8, rule 8; LCR Part 7, rule 8)

(1)  Subject to subrule (2), a person’s address for service is to be the address of a place in New South Wales (other than a DX address):

(a)  at which documents in the proceedings may be left for the person during ordinary business hours, and

(b)  to which documents in the proceedings may be posted for the person.

(2)  The address for service of a person who has a solicitor on the record is to be:

(a)  the office of the solicitor on the record, or

(b)  if the solicitor on the record has another solicitor acting as agent, the office of the agent.

(3)  Despite subrules (1) and (2):

(a)  the address for service of a defendant who is served with originating process outside New South Wales, but in Australia, may be any address in Australia, whether inside or outside New South Wales, and

(b)  the address for service of a person who files a notice under section 19 (1) of the Mutual Recognition Act 1992 of the Commonwealth (other than a person who is represented by a solicitor) may be any address in Australia, whether inside or outside New South Wales, and

(c)  the address for service contained in an application to set aside a subpoena made under section 13 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth (other than a person who is represented by a solicitor) may be:

(i)  any address in Australia, whether inside or outside New South Wales, or

(ii)  any address in New Zealand, and

(d)  the address for service of a person who has entered an appearance under the Service and Execution of Process Act 1992 of the Commonwealth is to be the address for service stated in relation to the appearance.

rule 4.5: Am 2009 (88), Sch 1 [6].

4.6 Changing address for service (cf SCR Part 9, rule 6; DCR Part 8, rule 8; LCR Part 7, rule 8)

(1)  A person may change his or her address for service by filing a notice of the change showing his or her new address for service and serving the notice on all other active parties.

(2)    (Repealed)

rule 4.6: Am 2007 (579), Sch 1 [6].

4.7 Numbers (cf SCR Part 65, rule 4; DCR Part 47, rule 4; LCR Part 36, rule 5)

(1)  All dates, sums and other numbers in a document are to be expressed in figures, rather than words.

(2)  Despite subrule (1):

(a)  months may be expressed in words, rather than numbers, and

(b)  if dates are expressed wholly in numbers, they must be expressed in the form DD/MM/YY or DD/MM/YYYY.

4.7A Land descriptions

(1)  Unless the court otherwise orders, in any claim or judgment for the possession of land, and in any writ of execution in relation to land, the description of the land must include:

(a)  a formal description of the land sufficient to identify the land in any document establishing title to the land, together with any appropriate reference to title, and

(b)  the postal address (if any) of the land.

(2)  Without limitation, a formal description of land referred to in subrule (1) (a) may be given:

(a)  in the case of land under the provisions of the Real Property Act 1900 that comprises the whole of the land referred to in one or more folios of the register under that Act, by reference to the relevant folio identifiers, or

(b)  in the case of any land (including land referred to in paragraph (a)), by reference to:

(i)  a registered plan (within the meaning of the Conveyancing Act 1919), or

(ii)  a formal land survey plan (within the meaning of the Surveying Act 2002), or

(iii)  a metes and bounds description prepared by a registered land surveyor (within the meaning of the Surveying Act 2002).

rule 4.7A: Ins 2006 (716), Sch 1 [7].

4.8 Separate documents for separate process

Separate process (such as a defence and a statement of cross-claim or a cross-summons, or a reply and a defence to a statement of cross-claim) are to be dealt with in separate documents.

4.9 Delegation by NSW Trustee and Guardian (cf SCR Part 63, rule 16)

(1)  If, in connection with any proceedings involving a person under legal incapacity, a delegate under section 9 of the NSW Trustee and Guardian Act 2009 signs a document in the exercise of a function delegated under that section, the delegate must include in the document a statement:

(a)  of the delegate’s name and position, and

(b)  that the document is signed in exercise of a function delegated under that section, and

(c)  if the delegate has not previously signed such a document in the proceedings, as to whether or not he or she has an interest in the proceedings adverse to that of the person under legal incapacity.

(2)  On request by the court, the registrar or any party to the proceedings, the delegate must furnish to the person making the request a photocopy of the delegation, certified by the delegate as being a true copy.

rule 4.9: Am 2009 (501), Sch 1 [1].

Division 2 Filing of documents

4.10 Filing generally (cf SCR Part 1, rule 9A)

(1)  A person may lodge a document for filing in relation to any proceedings:

(a)  by delivering it to an officer of the court in the registry, or

(b)  by sending it by post to the registry’s business address, or

(c)  by sending it to the registry’s DX address.

(2)  Any person may lodge a document with an officer of the court for the purpose of its being filed in relation to proceedings, or proposed proceedings, in the court.

(3)  Unless acceptance of the document is subsequently refused by the court or by an officer of the court, a document is taken to have been filed when it is lodged for filing.

(4)  The court may refuse to accept a document for filing whether or not an officer of the court has accepted the document for filing.

(5)  An officer of the court may refuse to accept a document for filing in the following circumstances:

(a)  in the case of originating process:

(i)  if the location specified in the document as the venue at which the proceedings are to be heard is a location at which the court does not sit, or

(ii)  if the person on whose behalf the originating process is sought to be filed is the subject of an order of the Supreme Court declaring the person to be a vexatious litigant,

(b)  in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment.

Note—

See also rule 3.4 in relation to the electronic filing of documents.

4.11 Case number or other unique identifier to be assigned to originating process (cf SCR Part 1, rule 10; DCR Part 5, rule 3; LCR Part 5, rule 3)

(1)  When originating process is accepted for filing, a case number or other unique identifier is to be assigned to the proceedings commenced by the process.

(2)  On accepting originating process for filing, an officer of the court must endorse on the process the case number or other unique identifier assigned to the proceedings commenced by the process.

4.12 Lodgment of additional copies of originating process for service (cf SCR Part 7, rule 6; DCR Part 5, rule 3; LCR Part 5, rule 3)

(1)  When filing originating process, a person may lodge additional copies for sealing.

(2)  On receiving such copies, an officer of the court:

(a)  must seal with the court’s seal a sufficient number of copies of the process for service on the other parties, and

(b)  if the process was filed by post or by use of an authorised DX system, must forward the sealed copies to the lodging party.

(3)  This rule does not apply in relation to originating process that is filed by means of an electronic case management system referred to in Part 3.

4.13 Place for filing

(1)  Subject to Part 3, a document (other than originating process) that is filed in relation to any proceedings must be filed:

(a)  subject to paragraphs (b) and (c), in the same registry as that in which the originating process was filed, or

(b)  if the proceedings have been transferred to another court, in the registry for that other court, or

(c)  if the court has ordered that documents are to be filed in some other registry, in that other registry.

(2)  In this rule, originating process does not include any process (such as a statement of cross-claim or cross-summons) by which a cross-claim is made.

rule 4.13: Am 2005 (395), Sch 1 [5]. Subst 2005 (625), Sch 1 [7].

4.14 Filing of notices on behalf of multiple parties (cf SCR Part 11, rule 3)

Two or more persons filing the same notice of appearance, notice of motion or other notice in the same proceedings, by the same solicitor and on the same day, may do so by a single notice.

4.15 Court’s power to deal with scandalous matter in documents (cf SCR Part 38, rule 8, Part 65, rule 5; DCR Part 30, rule 8, Part 47, rule 7; LCR Part 25, rule 8, Part 36, rule 8)

(1)  If any matter contained in a document on the court file is scandalous, frivolous, vexatious, irrelevant or oppressive, the court may order:

(a)  that the matter to be struck out of the document, or

(b)  that the document be placed in a sealed envelope on the court file, or

(c)  that the document be taken off the court file.

(2)  A sealed envelope referred to in subrule (1) (b) may not be opened except by order of the court.

4.16 Court to be advised as to subrogation to corporation

A person, when paying a filing fee, must advise the court if the proceedings to which the fee relates are being carried on by a corporation in the name of a natural person pursuant to a right of subrogation.

rule 4.16: Ins 2007 (164), Sch 1 [1].

Part 5 Preliminary discovery and inspection

5.1 Definitions (cf Federal Court Rules , Order 15A, rule 1)

In this Part:

applicant means an applicant for an order under this Part.

identity or whereabouts includes the name and (as applicable) the place of residence, registered office, place of business or other whereabouts, and the occupation and sex, of the person against whom the applicant desires to bring proceedings, and also whether that person is an individual or a corporation.

rule 5.1: Am 2005 (395), Sch 1 [6].

5.2 Discovery to ascertain prospective defendant’s identity or whereabouts (cf Federal Court Rules , Order 15A, rules 3, 5 and 9)

(1)  This rule applies if it appears to the court that:

(a)  the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person, and

(b)  some person other than the applicant (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

(2)  The court may make either or both of the following orders against the other person:

(a)  an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned,

(b)  an order that the other person must give discovery to the applicant of all documents that are or have been in the other person’s possession and that relate to the identity or whereabouts of the person concerned.

(3)  A court that makes an order for examination under subrule (2) (a) may also make either or both of the following orders:

(a)  an order that the other person must produce to the court on the examination any document or thing that is in the other person’s possession and that relates to the identity or whereabouts of the person concerned,

(b)  an order that the examination be held before a registrar.

(4)  An order under this rule with respect to any information, document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation.

(5)  A person need not comply with the requirements of an order under subrule (2) (a) unless conduct money has been handed or tendered to the person a reasonable time before the date on which attendance is required.

(6)  If the other person incurs expense or loss in complying with an order under subrule (2) (a), and the expense or loss exceeds the amount paid to the person under subrule (5), the court may order the applicant to pay to that person an amount sufficient to make good the expense or loss.

(7)  Unless the court orders otherwise, an application for an order under this rule:

(a)  must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought, and

(b)  must, together with a copy of the supporting affidavit, be served personally on the other person.

(8)  An application for an order under this rule is to be made:

(a)  if it is made in relation to proceedings in which the applicant is a party, by notice of motion in the proceedings, or

(b)  in any other case, by summons.

(9)  This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to claim or cross-claim against a person who is not a party to the proceedings.

rule 5.2: Am 2005 (395), Sch 1 [7].

5.3 Discovery of documents from prospective defendant (cf Federal Court Rules , Order 15A, rules 6, 7 and 9)

(1)  If it appears to the court that:

(a)  the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b)  the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c)  inspection of such a document would assist the applicant to make the decision concerned,

the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.

(2)  An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation.

(3)  Unless the court orders otherwise, an application for an order under this rule:

(a)  must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and

(b)  must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.

(4)  This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings.

rule 5.3: Am 2005 (395), Sch 1 [8].

5.4 Discovery of documents from other persons (cf Federal Court Rules , Order 15A, rule 8)

(1)  The court may order that a person who is not a party to proceedings, but in respect of whom it appears to the court that the person may have or have had possession of a document that relates to any question in the proceedings, must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to that question.

(2)  Unless the court orders otherwise, an application for an order under this rule:

(a)  must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and

(b)  must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.

rule 5.4: Am 2005 (395), Sch 1 [9].

5.5 Discovery and inspection generally (cf Federal Court Rules , Order 15A, rule 10)

Division 1 of Part 21 applies to and in respect of the discovery and inspection of documents the subject of an order for discovery under this Part in the same way as it applies to the discovery and inspection of documents the subject of an order for discovery under that Division.

Note—

See also rule 23.8 with respect to inspection of property.

rule 5.5: Am 2005 (395), Sch 1 [10].

5.6 Security for costs (cf Federal Court Rules , Order 15A, rule 11)

An order under this Part may be made subject to a condition requiring the applicant to give security for the costs of the person against whom the order is made.

rule 5.6: Am 2005 (395), Sch 1 [11].

5.7 Privilege (cf Federal Court Rules , Order 15A, rule 2)

An order under this Part does not operate so as to require the person against whom it is made to produce any privileged document that the person could not be required to produce:

(a)  if the applicant had commenced proceedings against that person, or

(b)  if that person had otherwise become a party to proceedings to which the applicant is a party, or

(c)  if the person had been served with a subpoena for production of the document in proceedings to which the applicant is a party.

rule 5.7: Am 2005 (395), Sch 1 [12].

5.8 Costs and other expenses (cf SCR Part 52A, rule 26; DCR Part 39A, rule 5; Federal Court Rules , Order 15A, rules 4 and 11)

(1)  On any application for an order under this Part, the court may make orders for the costs of the applicant, of the person against whom the order is made or sought and of any other party to the proceedings.

(2)  The costs in respect of which such an order may be made include:

(a)  payment of conduct money, and

(b)  payments made on account of any expense or loss in relation to the proceedings, and

(c)  the costs of making and serving any list of documents, and

(d)  the costs of producing any documents for inspection, and

(e)  the costs of otherwise complying with the requirements of any order under Division 1 of Part 21, as applying to the discovery and inspection of documents the subject of an order for discovery under this Part.

rule 5.8: Am 2005 (395), Sch 1 [13].

Part 6 Commencing proceedings and appearance

Division 1 General

6.1 No step without originating process or notice of appearance (cf SCR Part 11, rule 2)

(1)  Except by leave of the court, a party may not take any step in proceedings (including any appearance in court) unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings.

(2)  Subrule (1) does not apply to:

(a)  a defendant who applies for an order under rule 12.11 (Setting aside originating process etc), or

(b)  a plaintiff who applies for an order under rule 25.2 (Order in urgent case before commencement of proceedings), or

(c)  a defendant who makes an application in relation to the setting aside or enforcement of any judgment.

(3)  In any proceedings, a person (not being a party and not having filed a notice of motion) may not take any step in the proceedings (including any appearance in court) unless he or she has filed a notice of address for service.

rule 6.1: Am 2005 (625), Sch 1 [8]; 2006 (96), Sch 1 [1]–[3].

6.1A Proceedings that do not require a defendant (cf SCR Part 58, rule 1, Part 70, rule 11, Part 73, rule 4 and Schedule J)

Unless the court otherwise orders, proceedings that may be commenced without joining any person as a defendant include the following:

(a)  proceedings under the Adoption Act 2000,

(b)  proceedings under section 33 of the Evidence on Commission Act 1995,

(c)  proceedings under the Jury Act 1977,

(d)  proceedings under section 17 of the Witness Protection Act 1995,

(e)  proceedings under rule 55.9.

rule 6.1A: Ins 2007 (501), Sch 1 [1].

Division 2 Originating process

6.2 How proceedings commenced (cf SCR Part 4, rules 1 and 3, Part 7, rule 7; DCR Part 5, rules 5 and 6; LCR Part 5, rule 1)

(1)  Subject to these rules, the practice notes and any other rules of court, a person may commence proceedings in the court by filing a statement of claim or a summons.

(2)  Subject to these rules, the practice notes and any other Act or law, the plaintiff may choose whether to commence proceedings by statement of claim or by summons.

(3)  Originating process must be served on each defendant.

(4)  Subject to subrule (5), originating process is valid for service:

(a)  in the case of proceedings in the Supreme Court, the Land and Environment Court, the Dust Diseases Tribunal or the Local Court, for 6 months after the date on which it is filed, or

(b)  in the case of proceedings in the District Court:

(i)  except as provided by subparagraph (ii), for one month after the date on which it is filed, or

(ii)  if the defendant (or at least one of the defendants) is to be served outside New South Wales, for 6 months after the date on which it is filed.

(5)  Failure to serve originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.

rule 6.2: Am 2005 No 22, Sch 3 [2]; 2009 (473), rule 3.

6.3 Where statement of claim required (cf SCR Part 4, rule 2)

Proceedings of the following kinds must be commenced by statement of claim:

(a)  proceedings on a claim for relief in relation to a debt or other liquidated claim,

(b)  proceedings on a claim for relief in relation to a tort,

(c)  proceedings on a claim based on an allegation of fraud,

(d)  proceedings on a claim for damages for breach of duty (however arising) and the damages claimed consist of or include:

(i)  damages in respect of the death of any person, or

(ii)  damages in respect of personal injuries to any person, or

(iii)  damages in respect of damage to any property,

(e)  proceedings on a claim for relief in relation to a trust, other than an express trust wholly in writing,

(f)  proceedings on a claim for possession of land,

(g)  proceedings on a claim for relief under the Property (Relationships) Act 1984,

(h)  proceedings on a claim for relief in relation to the publication of defamatory matter.

rule 6.3: Am 2005 (807), Sch 1 [2].

6.4 Where summons required (cf SCR Part 4, rules 2, 2A and 3)

(1)  Proceedings of the following kinds must be commenced by summons:

(a)  proceedings in which there is no defendant,

(b)  proceedings on an appeal or application for leave to appeal, other than proceedings assigned to the Court of Appeal,

(b1)  proceedings before the Supreme Court in the exercise of its jurisdiction under section 69 of the Supreme Court Act 1970,

(c)  proceedings for preliminary discovery or inspection under Part 5,

(d)  proceedings on a stated case,

(e)  proceedings on an application for approval under section 75 of the Civil Procedure Act 2005 of an agreement for the compromise or settlement of a claim,

(f)  proceedings on an application for a transfer order under Part 9 of the Civil Procedure Act 2005,

(g)  proceedings on an application for the removal or transfer of proceedings to the court under any Act, other than an application for a transfer order under Part 9 of the Civil Procedure Act 2005,

(h)  proceedings (other than proceedings on a claim for damages) on any application made under any Act (other than the Civil Procedure Act 2005),

(i)  proceedings on an application to the court under any Act, other than:

(i)  proceedings on an application under the Supreme Court Act 1970, the District Court Act 1973 or the Local Court Act 2007, and

(ii)  proceedings on an application that may properly be made in existing proceedings,

(j)  any other proceedings that, pursuant to these rules or any other rules of court, are required to be commenced by summons.

(2)  Proceedings of the following kinds may be commenced by summons, except where the application is made in proceedings that have been commenced in the court:

(a)  proceedings on an application for a writ of habeas corpus ad subjiciendum,

(b)  proceedings on an application for an order for the custody of a minor,

(c)  proceedings on an application for an order for the appointment of a tutor of a person under legal incapacity,

(d)  proceedings on an application for a declaration of right,

(e)  proceedings on an application for an injunction,

(f)  proceedings on an application for the appointment of a receiver,

(g)  proceedings on an application for an order for the detention, custody or preservation of property,

(h)  proceedings on a claim for relief for trespass to land.

Note—

If proceedings have already been commenced, the application should be made by motion: see rule 18.1.

(3)  Proceedings in the Supreme Court that the plaintiff intends to be entered in the Commercial List or the Technology and Construction List are to be commenced by summons.

(4)  Proceedings:

(a)  in which the sole or principal question at issue is, or is likely to be, one of:

(i)  the construction of an Act or a Commonwealth Act, or

(ii)  the construction of an instrument made under an Act or a Commonwealth Act, or

(iii)  the construction of a deed, will, contract or other document, or

(iv)  some other question of law, or

(b)  in which there is unlikely to be a substantial dispute of fact,

are amongst those which are appropriate to be commenced by summons unless the plaintiff considers the proceedings more appropriate to be commenced by statement of claim.

rule 6.4: Am 2005 (395), Sch 1 [14]–[18]; 2007 (579), Sch 2 [2]; 2008 (494), Sch 1 [3]; 2009 (501), Sch 1 [2].

6.5 Proceedings wrongly commenced by statement of claim (cf SCR Part 4, rule 2B)

(1)  Proceedings that have been commenced by statement of claim when they should have been commenced by summons are nevertheless, and for all purposes, taken to have been duly commenced as from the date of the filing of the statement of claim, and may be continued accordingly.

(2)  Despite subrule (1), the court may order the proceedings to be continued, as if they had been commenced by summons and as if any pleadings filed in the proceedings had been filed as affidavits, and may also make such orders as it thinks fit for the future conduct of the proceedings.

6.6 Proceedings wrongly commenced by summons (cf SCR Part 5, rule 11)

(1)  Proceedings that have been commenced by summons when they should have been commenced by statement of claim are nevertheless, and for all purposes, taken to have been duly commenced as from the date of the filing of the summons.

(2)  Despite subrule (1), the court may order that the proceedings continue on pleadings.

(3)  On or after making such an order, the court:

(a)  may order that any affidavits stand as pleadings, or

(b)  may make orders for the filing of a statement of claim or other pleadings.

(4)  After a statement of claim is filed pursuant to an order referred to in subrule (3) (b), the proceedings are to continue, subject to any other order of the court, as if commenced by statement of claim.

6.7 Determination (cf SCR Part 5, rule 8)

The court may, on the first or any later day of hearing:

(a)  hear and determine the proceedings or any claim in the proceedings, and

(b)  make such order or give such judgment as the nature of the case requires.

6.8 Originating process for recovery of land to be served on occupier (cf SCR Part 7, rule 8)

(1)  If, when proceedings for possession of land are commenced, a person (the occupier) not joined as a defendant is in occupation of the whole or any part of the land, the plaintiff:

(a)  must state in the originating process that the plaintiff does not seek to disturb the occupier’s occupation of the land, or

(b)  must serve the originating process on the occupier together with a notice to the effect that:

(i)  the occupier may apply to the court for an order that the occupier be added as a defendant, and

(ii)  if the occupier does not so apply within 10 days after service, the occupier may be evicted under a judgment entered in the occupier’s absence.

(2)  For the purposes of subrule (1), documents may be served on the occupier personally or by leaving the documents on the land concerned addressed to the occupier by name or addressed simply “to the occupier”.

(3)  If originating process is amended by the addition of a claim for possession of land, the time at which proceedings for possession of that land are commenced is taken, for the purposes of subrule (1), to be the time at which the amendment is made.

6.8A Originating process for proceedings to be entered in Possession List

The originating process in proceedings in the Common Law Division of the Supreme Court that are to be entered in The Possession List is to have a coversheet in the approved form.

rule 6.8A: Ins 2009 (569), Sch 1 [1].

Division 3 Defendant to proceedings to enter appearance

6.9 How appearance entered (cf SCR Part 11, rule 3)

(1)  A defendant may enter an appearance in proceedings by filing a notice of appearance.

(2)  A defendant who files a defence in proceedings is taken to have entered an appearance in the proceedings.

Note—

Appearance may be withdrawn: see rule 12.5.

6.10 Time for appearance (cf SCR Part 7, rule 5, Part 11, rule 6)

(1)  For the purposes of these rules, the time limited for a defendant to enter an appearance (whether by filing a notice of appearance in accordance with this Division or by filing a defence in accordance with Division 4) is:

(a)  in the case of proceedings commenced by statement of claim:

(i)  28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence, or

(ii)  if the defendant makes an unsuccessful application to have the statement of claim set aside, 7 days after the refusal of the application,

whichever is the later, or

(b)  in the case of proceedings commenced by summons:

(i)  on or before the return day stated in the summons, or

(ii)  if the defendant makes an unsuccessful application to have the summons set aside, 7 days after the refusal of the application,

whichever is the later.

(2)  A reference in subrule (1) (b) to a summons extends, in relation to the Land and Environment Court, to an application that, in accordance with the rules of that Court, commences proceedings in Class 1, 2 or 3 of that Court’s jurisdiction.

rule 6.10: Am 2007 (580), Sch 1 [2].

6.11 Defendant may submit to judgment by notice of appearance (cf SCR Part 11, rule 4 (3), (4) and (5))

(1)  A defendant who intends to take no active part in proceedings may include in the defendant’s notice of appearance a statement to the effect that the defendant submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made, to which may be added the words “, save as to costs”.

(2)  Except by leave of the court, a defendant who has filed a notice of appearance containing a statement referred to in subrule (1) may not file a defence or affidavit or take any other step in the proceedings.

Note—

See rule 20.34 which allows the defendant in proceedings on a liquidated claim to file a statement acknowledging the whole of the amount of the claim.

Division 4 Contents of statement of claim and summons

6.12 Relief claimed (cf SCR Part 7, rule 1; DCR Part 5, rules 6 and 6A; LCR Part 5, rules 1 and 2)

(1)  A statement of claim or summons must specifically state the relief claimed by the plaintiff.

(2)  If the relief claimed requires the determination or direction of the court on any question, the statement of claim or summons must state the question.

(3)  Costs referred to in section 329 (1) (c) of the Legal Profession Act 2004 (costs payable for the enforcement of a lump sum debt or liquidated sum for damages) must be specifically claimed.

(4)  Costs, other than those referred to in section 329 (1) (c) of the Legal Profession Act 2004, need not be specifically claimed.

(5)  Exemplary damages and aggravated compensatory damages must be specifically claimed.

(6)  An order for interest up to judgment must be specifically claimed.

(7)  In the case of a liquidated claim, a claim for an order for interest up to judgment:

(a)  must specify the period or periods for which interest is claimed, and

(b)  may specify the rate or rates at which interest is claimed.

(8)  If no rate of interest is specified under subrule (7) (b), the rate at which interest is claimed is taken to be:

(a)  in respect of the period from 1 January to 30 June in any year—the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and

(b)  in respect of the period from 1 July to 31 December in any year—the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.

Note—

See Part 46 as to the additional matters to be included in a summons relating to an appeal.

rule 6.12: Am 2006 (716), Sch 1 [8]; 2010 (172), Sch 1 [1]; 2010 (279), Sch 1 [2].

6.12A Proceedings for order in the nature of prerogative writ

A summons in proceedings before the Supreme Court in the exercise of its jurisdiction under section 69 of the Supreme Court Act 1970:

(a)  must contain a statement as to:

(i)  whether the relief claimed by the plaintiff relates to the whole, or to part only, of the decision of the court below and, if to part only, to which part, and

(ii)  what decision the plaintiff seeks in place of the decision of the court below, and

(b)  must contain a statement setting out briefly but specifically the grounds relied on in support of the plaintiff’s claim including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below, and

(c)  must annex a copy of the decision of the court below and a copy of the reasons, if any, for the court’s decision.

rule 6.12A: Ins 2009 (501), Sch 1 [3].

6.13 Notice to defendant in statement of claim (cf SCR Part 7, rule 3)

A statement of claim:

(a)  must state that, unless a defence is filed in the registry, the proceedings may result in a judgment or order against the defendant, and

(b)  must give the address of the registry where the statement of claim is filed (which will consequently be the address where any further pleadings and other documents are to be filed), and

(c)  must specify the time limited by these rules for filing a defence.

Note—

See rule 6.8 in relation to claims for the possession of land.

6.14 Notice to defendant in summons (cf SCR Part 7, rule 3)

A summons filed in proceedings in which there is a defendant:

(a)  must state that:

(i)  the proceedings may be heard, and

(ii)  the defendant is liable to suffer judgment or an order against the defendant,

unless there is attendance before the court by the defendant or his or her barrister or solicitor at the time and place stated in the summons, and

(b)  must further state that, before any such attendance, the defendant must file a notice of appearance in the registry, and

(c)  must give the address of the registry at the place named as the place for attendance.

6.15 Summons to specify return day (cf SCR Part 5, rule 3)

(1)  A summons must state a return day.

(2)  The return day may be fixed by the court or, if not fixed by the court, is to be obtained from the registry.

(3)  If there is a defendant, the summons is to be served on the defendant not less than 5 days before the return day unless the court orders otherwise.

(4)  A summons is to bear a note stating the terms of any order made under subrule (3).

(5)  If a return day is obtained from the registry and the summons is to be served outside New South Wales, the return day is to be not less than one month after the date of filing of the summons.

6.16 Alteration of return day in summons (cf SCR Part 5, rule 5A)

The court may, by notice given to the parties by telephone or otherwise, postpone the return day for a summons to a later day, and may authorise the parties’ solicitors to make corresponding alterations to the copies of the summonses held by them.

6.17 Payment towards liquidated claim stays proceedings on claim (cf SCR Part 7, rule 4; DCR Part 14, rule 2; LCR Part 12, rule 2)

(1)  This rule applies to proceedings in which the plaintiff makes a liquidated claim, but makes no claim of any other kind.

(2)  The defendant in any such proceedings may, within the time limited for appearance, pay to the plaintiff the sum of:

(a)  the amount claimed (other than costs), including any interest claimed, and

(b)  an amount for costs equal to the amount fixed in relation to such a claim by the regulations under the Legal Profession Act 2004, and

(c)  if the amount so fixed does not include the fee paid on filing the originating process, an amount equal to that fee.

(3)  Having made such a payment, the defendant may file a notice of payment.

(4)  The filing of a notice of payment operates as a permanent stay of the proceedings unless the court orders otherwise.

(5)  A statement of claim commencing proceedings to which this rule applies must bear a note to the effect of this rule and must specify the amounts for costs referred to in subrule (2) (b) and (c).

rule 6.17: Am 2006 (716), Sch 1 [9].

Division 5 Joinder of causes of action and joinder of parties

6.18 Joinder of causes of action (cf SCR Part 8, rule 1; DCR Part 7, rule 1; LCR Part 6, rule 1)

(1)  In any originating process, the plaintiff may claim relief against the defendant in respect of more than one cause of action in any of the following circumstances:

(a)  if the plaintiff sues in the same capacity, and claims the defendant to be liable in the same capacity, in respect of each cause of action,

(b)  if the plaintiff sues:

(i)  in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and

(ii)  in his or her personal capacity, but with reference to the estate of the same deceased person, in respect of the remaining causes of action,

(c)  if the plaintiff claims the defendant to be liable:

(i)  in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and

(ii)  in his or her personal capacity, and in relation to the estate of the same deceased person, in respect of the remaining causes of action,

(d)  if the court grants leave for all of the causes of action to be dealt with in the same proceedings.

(2)  Leave under subrule (1) may be granted before or after the originating process is filed.

6.19 Proceedings involving common questions of law or fact (cf SCR Part 8, rule 2; DCR Part 7, rule 2; LCR Part 6, rule 2)

(1)  Two or more persons may be joined as plaintiffs or defendants in any originating process if:

(a)  separate proceedings by or against each of them would give rise to a common question of law or fact, and

(b)  all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions,

or if the court gives leave for them to be joined.

(2)  Leave under subrule (1) may be granted before or after the originating process is filed.

6.20 Proceedings affecting persons having joint entitlement (cf SCR Part 8, rules 3 and 4; DCR Part 7, rules 3 and 4; LCR Part 6, rules 3 and 4)

(1)  Unless the court orders otherwise, all persons jointly entitled to the same relief must be joined as parties in any claim for that relief that is made by any one or more of them.

(2)  Unless the court orders otherwise, any other such person is to be joined:

(a)  as a plaintiff, if he or she consents to being a plaintiff, or

(b)  as a defendant, if he or she does not consent to being a plaintiff.

(3)  Despite subrule (1), a person may not be joined as a party to proceedings in contravention of any other Act or law.

Note—

See, for example, section 62 of the Bankruptcy Act 1966 of the Commonwealth.

6.21 Proceedings affecting persons having joint or several liability (cf SCR Part 8, rule 5; DCR Part 7, rule 5; LCR Part 6, rule 5)

(1)  A person who is jointly and severally liable with some other person in relation to any act, matter or thing need not be a defendant in proceedings with respect to that act, matter or thing merely because the other person is a defendant in those proceedings.

(2)  In any proceedings in which a defendant is one of a number of persons who are jointly, but not severally, liable in contract or tort, or under an Act or statutory instrument, the court may order that the other persons be joined as defendants and that the proceedings be stayed until those other persons have been so joined.

6.22 Court may order separate trials if joinder of party or cause of action inconvenient (cf SCR Part 8, rule 6; DCR Part 7, rule 6; LCR Part 6, rule 6)

If the court considers that the joinder of parties or causes of action in any proceedings may embarrass, inconvenience or delay the conduct of the proceedings, the court:

(a)  may order separate trials, or

(b)  may make such other order as it thinks fit.

6.23 Effect of misjoinder or non-joinder of parties (cf SCR Part 8, rule 7 (1); DCR Part 7, rule 7 (1); LCR Part 6, rule 7 (1))

Proceedings are not defeated merely because of the misjoinder or non-joinder of any person as a party to the proceedings.

6.24 Court may join party if joinder proper or necessary (cf SCR Part 8, rule 8 (1); DCR Part 7, rule 8 (1); LCR Part 6, rule 8 (1))

(1)  If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

(2)  Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.

6.25 Joinder as plaintiff requires party’s consent (cf SCR Part 8, rule 8 (2); DCR Part 7, rule 8 (2); LCR Part 6, rule 8 (2))

A person is not to be joined as a plaintiff in any proceedings except with his or her consent.

6.26 Joinder to recover costs (cf SCR Part 52A, rule 4 (3) and (4))

(1)  Except to the extent to which these rules expressly provide, a party may not join another person as a party to any proceedings for the purpose of making an application for costs against the other person.

(2)  This rule does not apply:

(a)  if the other person would otherwise be a proper party to the proceedings, or

(b)  if the party joins the other person by means of a cross-claim in respect of a claim for costs against the party.

6.27 Joinder on application of third party (cf SCR Part 8, rule 8; DCR Part 7, rule 8; LCR Part 6, rule 8)

A person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant.

6.28 Date of commencement of proceedings in relation to parties joined (cf SCR Part 8, rule 11 (3) and (4); DCR Part 7, rule 11 (3); LCR Part 6, rule 11 (3))

If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order.

Division 6 Removal of parties

6.29 Removal of parties by order (cf SCR Part 8, rule 9; DCR Part 7, rule 9; LCR Part 6, rule 9)

The court may order that a person:

(a)  who has been improperly or unnecessarily joined, or

(b)  who has ceased to be a proper or necessary party,

be removed as a party.

6.30 Effect of certain changes on proceedings (cf SCR Part 8, rule 10; DCR Part 7, rule 10; LCR Part 6, rule 10)

(1)  Proceedings do not abate as a result of a party’s death or bankruptcy if a cause of action in the proceedings survives.

(2)  If a cause of action survives, and the interest or liability of a party to any proceedings passes from the party to some other person, the court may make such orders as it thinks fit for the joinder, removal or re-arrangement of parties.

(3)  Without limiting subrule (2), if a party to an application under section 20 of the Property (Relationships) Act 1984 dies, the court may order the substitution of the legal representative, as mentioned in section 24 (1) of that Act, as a party to the application.

rule 6.30: Am 2006 (96), Sch 1 [4].

6.31 Court may dismiss proceedings not prosecuted following death of party (cf SCR Part 8, rule 12; DCR Part 7, rule 12; LCR Part 6, rule 12)

(1)  This rule applies to any proceedings in which:

(a)  a party dies, but a cause of action in the proceedings survives his or her death, and

(b)  an order for the joinder of a party to replace the deceased party is not made within 3 months after the death.

(2)  The court may order that, unless an application to join a party to replace the deceased party is made within a specified time, the proceedings in relation to the cause of action concerned be dismissed.

(3)  An application for such an order may be made by any person to whom the deceased party’s liability in relation to the cause of action concerned has passed (whether or not a party to the proceedings).

(4)  On making an order under this rule, the court may give such directions as it thinks fit for service of the order on any person (whether or not a party to the proceedings) who is interested in continuing the proceedings.

Division 7 Orders as to future conduct of proceedings

6.32 Orders as to the future conduct of proceedings (cf SCR Part 8, rule 11; DCR Part 7, rule 11; LCR Part 6, rule 11)

(1)  If in any proceedings the court makes an order under Division 5 or 6, it may also make such orders as it thinks fit for the future conduct of the proceedings, including orders with respect to the following:

(a)  the service of the order, and other documents,

(b)  the amendment of documents,

(c)  the entering of an appearance, or the filing of a defence, by persons who are joined as defendants,

(d)  the substitution of one party for another party or former party.

(2)  If the court orders the substitution of one party for another party or former party, all things previously done in the proceedings have the same effect in relation to the new party as they had in relation to the old, subject to any other order by the court.

Note—

See rule 6.28 as to when proceedings are taken to have commenced in relation to a new party.

Division 8 Referred questions of law and stated cases

pt 6, div 8: Ins 2007 (164), Sch 1 [2].

6.33 Definitions

(1)  In this Division:

original proceedings, in relation to a referred question of law or stated case, means the proceedings (if any) in which the question or case has arisen.

referred matter means a question of law or stated case that has been referred to the Supreme Court for determination.

referring body means the court or other authority by which a question of law or stated case is referred to the Supreme Court for determination.

(2)  A reference in this Division to the Supreme Court includes a reference to the Court of Appeal where the proceedings concerned are assigned to or in the Court of Appeal.

rules 6.33: Ins 2007 (164), Sch 1 [2]. Am 2008 (338), Sch 1 [4].

6.34 Application of Division

This Division applies to proceedings in the Supreme Court for an order with respect to a referred matter under a legislative provision, including (but not limited to) the following provisions:

Administrative Decisions Tribunal Act 1997, section 79A, 118 or 118D,

Constitution Further Amendment (Referendum) Act 1930, section 28,

Consumer, Trader and Tenancy Tribunal Act 2001, section 66,

Powers of Attorney Act 2003, section 39,

Real Property Act 1900, section 123 or 124,

Note—

This Division also applies by force of rules 12.1A and 15.1 of the Supreme Court (Corporations) Rules 1999 to questions referred to the Supreme Court under the following Commonwealth legislation:

Australian Securities and Investments Commission Act 2001, section 61,

Corporations Act 2001, section 659A.

rule 6.34: Ins 2007 (164), Sch 1 [2]. Subst 2008 (338), Sch 1 [5]. Am 2009 (88), Sch 1 [7].

6.35 Originating process

(1)    (Repealed)

(2)  The originating process:

(a)  in the case of proceedings to which the Supreme Court (Corporations) Rules 1999 apply, must be in the form of the originating process prescribed by rule 2.2 of those rules, and

(b)  in any other case, must be in the form of a summons.

(3)  The referred matter:

(a)  must be in the form of a special case, and

(b)  must be filed with the originating process.

(4)  The originating process must join as defendants (or as respondents where the proceedings are in the Court of Appeal):

(a)  if the referred matter has arisen in original proceedings, all of the parties to the original proceedings, or

(b)  in any other case, all of the persons who may be directly affected by the Supreme Court’s determination of the referred matter.

(5)  In the case of proceedings under section 123 of the Real Property Act 1900, the originating process must also join the Registrar-General as a defendant.

(6)  The Supreme Court may order that such other persons as it considers appropriate be joined as defendants (or as respondents where the proceedings are in the Court of Appeal).

rule 6.35: Ins 2007 (164), Sch 1 [2]. Am 2008 (338), Sch 1 [6] [7].

6.36 Form of special case (cf Federal Court Rules Order 50, rule 1)

A special case:

(a)  must be divided into consecutively numbered paragraphs, and

(b)  must state concisely the questions to be decided and the facts from which those questions arise, and

(c)  must annex all documents necessary to enable the Supreme Court to decide those questions.

rules 6.36–6.38: Ins 2007 (164), Sch 1 [2].

6.37 Procedure for preparing special case (cf Federal Court Rules Order 50, rule 2)

(1)  In the case of a referred matter that has arisen in original proceedings, a special case:

(a)  must be prepared in draft by the party having the conduct of the original proceedings in consultation with the other parties to those proceedings, and

(b)  must be settled by the referring body,

unless the referring body otherwise directs.

(2)  In the case of a referred matter that has arisen otherwise than in original proceedings, a special case must be prepared:

(a)  in the case of proceedings under section 123 of the Real Property Act 1900, by the applicant referred to in that section, or

(b)  in any other case, by the referring body.

rules 6.36–6.38: Ins 2007 (164), Sch 1 [2].

6.38 Conduct of proceedings (cf Federal Court Rules Order 50, rule 4)

(1)  This rule applies to any proceedings with respect to a referred matter that has arisen in original proceedings.

(2)  Subject to rule 7.8, the party at whose instance the matter has been referred is to have the conduct of the proceedings.

rules 6.36–6.38: Ins 2007 (164), Sch 1 [2].

6.39 Insufficient case (cf SCR Part 32, rule 7)

(1)  This rule applies to any proceedings in which it appears to the Supreme Court that a special case:

(a)  does not sufficiently state the questions to be decided or the facts from which those questions arise, or

(b)  does not annex sufficient documents,

to enable it to determine the proceedings.

(2)  In these circumstances, the Supreme Court:

(a)  may add to or otherwise alter the special case, or

(b)  may send the special case back to the referring body for the purpose of addition or other alteration.

(c)    (Repealed)

rule 6.39: Ins 2007 (164), Sch 1 [2]. Am 2008 (338), Sch 1 [8] [9].

6.40 Inferences (cf FCR Ord 50, rule 1 (3))

The Supreme Court may draw from the facts stated in, and the documents annexed to, a special case any inference, whether of fact or law, that might have been drawn from them if proved at a trial.

rules 6.40, 6.41: Ins 2007 (164), Sch 1 [2].

6.41 Referred matters under section 28 of the Constitution Further Amendment (Referendum) Act 1930

(1)  This rule applies to any question that is referred to the Supreme Court under section 28 of the Constitution Further Amendment (Referendum) Act 1930.

(2)  Proceedings on the question are commenced by transmission to the Prothonotary of a statement of the question, as provided for in section 29 of the Constitution Further Amendment (Referendum) Act 1930.

(3)  On receiving the statement, the Prothonotary must list the matter before a Judge of the Supreme Court for directions.

(4)  The Supreme Court may give all such directions as are necessary for the conduct and disposal of the proceedings on the question.

(5)  Rules 6.35–6.40 do not apply to the proceedings on the question.

rules 6.40, 6.41: Ins 2007 (164), Sch 1 [2].

Division 9 Issues arising under foreign law

pt 6, div 9 (rules 6.42–6.45): Ins 2010 (280), Sch 1.

6.42 Definitions

In this Division:

foreign court means a court of a country other than Australia.

foreign law means the law of a country other than Australia.

pt 6, div 9 (rules 6.42–6.45): Ins 2010 (280), Sch 1.

6.43 Filing of notices

(1)  A party who contends that an issue in proceedings in the Supreme Court is governed by foreign law must file and serve on the other parties affected by the issue a notice (a foreign law notice) setting out the relevant principles of foreign law and their application to the issue.

(2)  The foreign law notice must be filed and served by the party contending that an issue is governed by foreign law not more than 6 weeks after the filing by that party of a summons, statement of claim, statement of cross-claim or defence in respect of the proceedings.

(3)  A party on whom a foreign law notice is served who disputes the principles of foreign law or their application must file and serve on the other parties affected by the issue a notice setting out the matter or matters in dispute (a notice of dispute as to foreign law).

(4)  The notice of dispute as to foreign law must be filed and served not more than 8 weeks after the date of service of the foreign law notice.

pt 6, div 9 (rules 6.42–6.45): Ins 2010 (280), Sch 1.

6.44 Orders

(1)  The Supreme Court may, on the application of one or more of the parties and with the consent of all of the parties, order that proceedings be commenced in a foreign court in order to answer a question as to the principles of foreign law or as to their application.

(2)  The Supreme Court may, on the application of one or more of the parties or of its own motion, order that the question of foreign law be answered by a referee appointed in accordance with Division 3 of Part 20.

(3)  An order under subrule (1) must:

(a)  state the question of foreign law to be answered, and

(b)  state the facts or assumptions upon which the answer to the question is to be determined, and

(c)  contain a statement to the effect that the foreign court may vary the facts or assumptions and the question to be answered, and

(d)  state whether and to what extent the parties may depart from the facts or assumptions in the determination of the question by the foreign court.

(4)  The Supreme Court may give directions for the preparation of a statement as to the nature of the issue out of which the question arises for inclusion with the question to be answered by the foreign court or the referee.

pt 6, div 9 (rules 6.42–6.45): Ins 2010 (280), Sch 1.

6.45 Determination of issues arising in foreign court proceedings

Proceedings for determination of an issue of Australian law, being an issue with respect to which the Supreme Court may exercise its jurisdiction and which is relevant to an issue in proceedings in a foreign court, may be commenced by summons seeking a declaration of the answer to a question in the form determined by the foreign court.

pt 6, div 9 (rules 6.42–6.45): Ins 2010 (280), Sch 1.

Part 7 Parties to proceedings and representation

Division 1 General

7.1 By whom proceedings may be commenced and carried on (cf SCR Part 4, rules 4 and 4A, Part 66, rule 1; Act No 9 1973, section 43; Act No 11 1970, section 11)

(1)  A natural person may commence and carry on proceedings in any court, either by a solicitor acting on his or her behalf or in person.

(1A)  Despite subrule (1), but subject to subrule (5), the court may order that proceedings commenced by a natural person acting on behalf of another person pursuant to a power of attorney be carried on, on behalf of that other person, by a solicitor.

(2)  A company within the meaning of the Corporations Act 2001 of the Commonwealth:

(a)  may commence and carry on proceedings in any court by a solicitor or by a director of the company, and

(b)  may commence and, unless the court orders otherwise, carry on proceedings in the Local Court by a duly authorised officer or employee of the company.

(3)  In the case of proceedings in the Supreme Court, subrule (2) (a) authorises a company to commence proceedings by a director only if the director is also a plaintiff in the proceedings.

(4)  A corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth):

(a)  may commence and carry on proceedings in any court by a solicitor, and

(b)  may commence and carry on proceedings in any court (other than the Local Court) by a duly authorised officer of the corporation, and

(c)  may commence and, unless the court orders otherwise, carry on proceedings in the Local Court by a duly authorised officer or employee of the corporation.

(4A)  Despite subrules (1)–(4), any person may commence and, unless the Commission orders otherwise, carry on proceedings in the Industrial Relations Commission by an industrial agent within the meaning of the Industrial Relations Act 1996.

(4B)  Subrule (4A) does not apply to or in respect of proceedings in the Industrial Relations Commission when constituted as the Industrial Court.

(5)  Despite subrules (1)–(4), any person may commence and, unless the court orders otherwise, carry on proceedings in the Local Court:

(a)  by a commercial agent with respect to debt collection (within the meaning of the Commercial Agents and Private Inquiry Agents Act 2004), in relation only to proceedings on an application for:

(i)  an instalment order, or

(ii)  an order for examination, or

(iii)  a writ of execution, or

(iv)  a garnishee order, or

(b)  by a person holding a licence as a real estate agent, strata managing agent or on-site residential property manager within the meaning of the Property, Stock and Business Agents Act 2002 in relation only to:

(i)  proceedings on an application referred to in paragraph (a), or

(ii)  the filing of a certificate under section 51 of the Consumer, Trader and Tenancy Tribunal Act 2001.

(6)  A solicitor who is a person’s solicitor on the record must hold an unrestricted practising certificate.

Note—

The term solicitor on the record is defined in the Dictionary.

rule 7.1: Am 2006 (288), Sch 1 [3]; 2009 (88), Sch 1 [8]; 2009 (501), Sch 1 [4]; 2009 (570), Sch 1 [2].

7.2 Affidavit as to authority to commence and carry on proceedings in Supreme Court or District Court (cf SCR Part 4, rule 4A, Part 11, rule 1A)

(1)  A person who commences or carries on proceedings in the Supreme Court or District Court:

(a)  as the director of a company within the meaning of the Corporations Act 2001 of the Commonwealth, or

(b)  as the authorised officer of a corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth),

must file with the originating process, notice of appearance or defence, as the case may be, an affidavit as to his or her authority to act in that capacity, together with a copy of the instrument evidencing that authority.

(2)  The affidavit made by the director of a company within the meaning of the Corporations Act 2001 of the Commonwealth must contain:

(a)  a statement to the effect that:

(i)  the director is a director of the company, and

(ii)  the director has been authorised by a resolution of the directors duly passed at a meeting of directors held on a specified date (which must not be earlier than 21 days before the date of the affidavit) to commence and carry on the proceedings, as the case requires, and

(iii)  the authority has not been revoked, and

(iv)  the director is aware that he or she may be liable to pay some or all of the costs of the proceedings, or

(b)  a statement to the effect that:

(i)  the director is the managing or governing director of the company and has authority to exercise the powers of the directors, and

(ii)  the director is aware that he or she may be liable to pay some or all of the costs of the proceedings.

(3)  The affidavit made by the authorised officer of a corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth) must contain a statement to the effect that:

(a)  the officer is the holder of a specified office within the corporation, and

(b)  the officer has been authorised by the corporation to commence and carry on the proceedings, and

(c)  the authority has not been revoked, and

(d)  the officer is aware that he or she may be liable to pay some or all of the costs of the proceedings.

7.3 Issue of subpoena in certain circumstances requires leave (cf SCR Part 66, rule 1A)

(1)  A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings.

(2)  Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas.

(3)  Despite subrule (1), a subpoena may not be issued in relation to proceedings in the Small Claims Division of the Local Court, except by leave of the court, in any circumstances.

Division 2 Representation

7.4 Representation of concurrent interests (cf SCR Part 8, rule 13; DCR Part 7, rule 15)

(1)  Subject to subrule (5), this rule applies to any proceedings concerning:

(a)  any matter in which:

(i)  numerous persons have claims against the same person, and

(ii)  the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances, and

(iii)  the claims of all those persons give rise to a substantial common issue of law or fact, or

(b)  any matter in which numerous persons have the same liability.

(2)  Proceedings to which this rule applies may be commenced and, unless the court orders otherwise, carried on by or against any one or more persons as representing any one or more of them.

(2A)  Any such proceedings may be commenced:

(a)  whether or not the relief sought:

(i)  is, or includes, equitable relief, or

(ii)  consists of, or includes, damages, or

(iii)  includes claims for damages that would require individual assessment, or

(iv)  is the same for each represented person, and

(b)  whether or not the proceedings:

(i)  are concerned with separate contracts or transactions between the defendant in the proceedings and individual represented persons, or

(ii)  involve separate acts or omissions of the defendant done or omitted to be done in relation to individual represented persons.

(3)  At any stage of the proceedings, the plaintiff may apply to the court for an order appointing one or more of the defendants or one or more of the other persons to represent any one or more of them.

(4)  If a person who is not a party to the proceedings is appointed as referred to in subrule (3), that person must be joined as a party under rule 6.24.

(4A)  If it appears to the court that determination of the issue or issues common to all the represented persons will not finally determine the claims of all the represented persons, the court may give directions in relation to the determination of the remaining issues.

(4B)  Without limiting subrule (4A), the court may direct that notice be given to some or all of the represented persons in the proceedings in respect of any matter.

(4C)  A represented person, whether or not joined as a party, is taken to have brought proceedings on the day on which the person became a represented person on all of the person’s causes of action that may be determined by judgment in the proceedings.

(4D)  Without limiting subrule (2), the court may, on application by the defendant or of its own motion, order that proceedings no longer continue under this rule where it is satisfied that it is in the interests of justice to do so because:

(a)  the costs that would be incurred if the proceedings were to continue are likely to exceed the costs that would be incurred if each represented person conducted separate proceedings or

(b)  where the relief sought is the payment of money, the cost to the defendant of identifying the represented persons and distributing to them the amounts ordered to be paid to them would be excessive having regard to the likely total of those amounts, or

(c)  all the relief sought can be obtained by means of proceedings other than proceedings under this rule, or

(d)  the proceedings will not provide an efficient and effective means of dealing with the claims of all represented persons, or

(e)  a representative party is not able to adequately represent the interests of the represented persons.

(5)  This rule does not apply to proceedings concerning:

(a)  the administration of a deceased person’s estate, or

(b)  property the subject of a trust.

rule 7.4: Am 2007 (539), Sch 1 [1]–[4]; 2007 (579), Sch 1 [7]; 2009 (569), Sch 1 [2].

7.5 Judgments and orders in proceedings bind represented persons (cf SCR Part 8, rule 13; DCR Part 7, rule 15)

(1)  A judgment or order made in proceedings in which a party has, pursuant to rule 7.4, represented a number of persons binds all of those persons, but is not enforceable against any of those persons who is not a party except by leave of the court.

(2)  Notice of motion for an application for leave under subrule (1) must be personally served on the person against whom the judgment or order is sought to be enforced.

(3)  Subrule (1) does not prevent a person against whom the judgment or order is sought to be enforced from disputing liability by reference to circumstances peculiar to his or her case.

rule 7.5: Am 2007 (449), Sch 1 [2].

7.6 Representation in cases concerning administration of estates, trust property or statutory interpretation (cf SCR Part 8, rule 14)

(1)  In relation to proceedings concerning:

(a)  the administration of a deceased person’s estate, or

(b)  property the subject of a trust, or

(c)  the construction of an Act, instrument or other document,

where a person or class of persons is or may be interested in or affected by the proceedings, the court may appoint one or more of those persons to represent any one or more of them.

(2)  A person or persons may not be appointed under subrule (1) unless the court is satisfied of one or more of the following:

(a)  that the person or class, or a member of the class, cannot, or cannot readily, be ascertained,

(b)  that the person or class, or a member of the class, although ascertained, cannot be found,

(c)  that, although the person or class, or a member of the class, has been ascertained and found, it is expedient for the purpose of saving expense (having regard to all of the circumstances, including the amount at stake and the degree of difficulty of the issue or issues to be determined) for a representative to be appointed to represent any one or more of them.

(3)  For the purposes of this rule, persons may be treated as having an interest or liability:

(a)  even if, in relation to one or more of them, the interest or liability is a contingent or future interest or liability, or

(b)  even if one or more of those persons is an unborn child.

(4)  This rule does not limit the operation of rule 7.10.

7.7 Judgments and orders bind represented persons in estate and trust property proceedings (cf SCR Part 8, rule 14)

A judgment or order made in proceedings in which a party has, by an order under rule 7.6, been appointed to represent a number of persons, or members of a class of persons, binds all such persons, and all members of such a class, as if they had been parties to the proceedings.

7.8 Court may determine who has conduct of proceedings (cf SCR Part 8, rule 17; DCR Part 7, rule 14; LCR Part 6, rule 15)

The court may give the conduct of the whole or any part of any proceedings to such person as it thinks fit.

7.9 Judgments and orders bind beneficiaries (cf SCR Part 8, rule 15)

(1)  This rule applies to proceedings that have been commenced by or against a trustee, executor or administrator, including proceedings to enforce a security by way of foreclosure or otherwise.

(2)  It is not necessary to join as a party any of the persons having a beneficial interest under the trust, or in the estate, concerned.

(3)  Subject to subrule (4), any judgment that is given, and any order that is made, is as binding on a person having a beneficial interest under the trust, or in the estate, as it is binding on the trustee, executor or administrator.

(4)  If, in relation to proceedings in which such a judgment or order has been made, the court is satisfied that the representative, trustee, executor or administrator did not in fact represent some or all of the persons having a beneficial interest under the trust, or in the estate, the court may order that the judgment or order does not bind those persons.

(5)  This rule does not limit the power of the court to order that a party be joined under rule 6.24.

7.10 Interests of deceased person (cf SCR Part 8, rule 16; DCR Part 7, rule 13; LCR Part 6, rule 14)

(1)  This rule applies to any proceedings in which it appears to the court:

(a)  that a deceased person’s estate has an interest in the proceedings, but is not represented in the proceedings, or

(b)  that the executors or administrators of a deceased person’s estate have an interest in the proceedings that is adverse to the interests of the estate.

(2)  The court:

(a)  may order that the proceedings continue in the absence of a representative of the deceased person’s estate, or

(b)  may appoint a representative of the deceased person’s estate for the purposes of the proceedings, but only with the consent of the person to be appointed.

(3)  Any order under this rule, and any judgment or order subsequently entered or made in the proceedings, binds the deceased person’s estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings.

(4)  Before making an order under this rule, the court may order that notice of the application be given to such of the persons having an interest in the estate as it thinks fit.

Division 3 Executors, administrators and trustees

7.11 Executors, administrators and trustees (cf SCR Part 68, rule 4)

(1)  In proceedings relating to an estate, all executors of the will of the deceased, or all administrators of the estate, must be parties unless one or more of them has represented the others pursuant to rule 7.4.

(2)  In proceedings relating to a trust, all trustees must be parties.

(3)  In proceedings commenced by executors, administrators or trustees, any executor, administrator or trustee who does not consent to being joined as a plaintiff must be made a defendant.

rule 7.11: Am 2007 (449), Sch 1 [3].

7.12 Beneficiaries and claimants (cf SCR Part 68, rule 5)

(1)  In proceedings relating to an estate, all persons having a beneficial interest in or claim against the estate need not be parties, but the plaintiff may make parties of such of those persons as he or she thinks fit.

(2)  In proceedings relating to a trust, all persons having a beneficial interest under the trust need not be parties, but the plaintiff may make parties of such of those persons as he or she thinks fit.

(3)  This rule has effect despite rule 6.20 (Proceedings affecting persons having joint entitlement).

Division 4 Persons under legal incapacity

7.13 Definition

In this Division, person under legal incapacity includes a person who is incapable of managing his or her affairs.

7.14 Proceedings to be commenced or carried on by tutor (cf SCR Part 63, rules 2 and 3 (2); DCR Part 45, rules 2 and 3; LCR Part 34, rules 3 and 4)

(1)  A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.

(2)  Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.

7.15 Tutors generally (cf SCR Part 63, rules 4 and 5; DCR Part 45, rules 4 and 5; LCR Part 34, rules 5 and 6)

(1)  Subject to this Division, a person may become the tutor of a person under legal incapacity without the need for any formal instrument of appointment or any order of a court.

(2)  Any person (other than a corporation) is eligible to be the tutor of a person under legal incapacity, in respect of any proceedings, unless the person is:

(a)  a person under legal incapacity, or

(b)  a judicial officer, a registrar or any other person involved in the administration of a court, or

(c)  a person who has an interest in the proceedings adverse to the interests of the person under legal incapacity.

(3)  In the case of proceedings with respect to the estate of a person whose estate is subject to management under the NSW Trustee and Guardian Act 2009, the tutor of that person is to be the person who has the management of the person’s estate under that Act.

(4)  Subrule (3) does not apply if the person concerned declines to act as tutor or is unable to act as tutor, or if the court orders otherwise.

(5)  A person may not replace another person as tutor of a person under legal incapacity except by order of the court.

(6)  Anything that these rules authorise or require a party to do in relation to the conduct of proceedings may, if the party is a person under legal incapacity, be done on his or her behalf by his or her tutor.

rule 7.15: Am 2009 (501), Sch 1 [5].

7.16 Tutor to file certain documents (cf SCR Part 63, rule 4; DCR Part 45, rule 4; LCR Part 34, rule 5)

A tutor may not commence or carry on proceedings on behalf of a person under legal incapacity unless there have been filed:

(a)  the tutor’s consent to act as tutor, and

(b)  a certificate, signed by the tutor’s solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.

7.17 Non-appearance of person under legal incapacity (cf SCR Part 63, rule 6; DCR Part 45, rule 6; LCR Part 34, rules 3A and 7)

(1)  Subject to subrule (2), the plaintiff in proceedings against a defendant who is a person under legal incapacity may take no further step in the proceedings following service of the originating process until a tutor has entered an appearance on behalf of the defendant.

Note—

If no such appearance is entered, the plaintiff may apply to the court under rule 7.18 for the appointment of a tutor of the defendant, or for the removal and appointment of such a tutor.

(2)  In the case of proceedings in the Local Court against a defendant who appears to be a person under legal incapacity by reason only of his or her minority:

(a)  the plaintiff may serve on the defendant a notice requiring a tutor of the defendant to enter an appearance in the proceedings, and

(b)  unless the court orders otherwise, the plaintiff may continue the proceedings as if the defendant were not a person under legal incapacity if such an appearance is not entered within 28 days after service of the notice.

7.18 Court may appoint and remove tutors (cf SCR Part 63, rules 5, 7 and 8; DCR Part 45, rules 7 and 8; LCR Part 34, rules 8 and 9)

(1)  In any proceedings in which a party is or becomes a person under legal incapacity:

(a)  if the person does not have a tutor, the court may appoint a tutor, or

(b)  if the person has a tutor, the court may remove the party’s tutor and appoint another tutor.

(2)  In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings.

(3)  If the court removes a party’s tutor, it may also stay the proceedings pending the appointment of a new tutor.

(4)  Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person’s tutor, on the tutor.

(5)  In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include:

(a)  evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and

(b)  evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.

(6)  An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor.

Division 5 Business names

7.19 Persons to sue and be sued in own name (cf SCR Part 64, rule 4)

Subject to this Division, persons are to sue and be sued in their own names, and not under any business name.

7.20 Proceedings against defendant operating under unregistered business name (cf SCR Part 64, rule 2; DCR Part 46, rule 2; LCR Part 35, rule 2)

(1)  Proceedings against a person in respect of anything done or omitted to be done by the person in the course of, or in relation to, a business carried on under an unregistered business name may be commenced against that person, as defendant, under that name.

(2)  For the purposes of any such proceedings, the unregistered business name is taken to be a sufficient description of that person.

(3)  Any judgment or order arising from any such proceedings may be enforced against that person.

7.21 Defendant sued in business name to respond in own name (cf SCR Part 64, rule 4; DCR Part 46, rule 3; LCR Part 35, rule 3)

(1)  In any proceedings in which a defendant is sued under a business name, the defendant must not enter an appearance or file a defence otherwise than in his or her own name.

(2)  When entering an appearance or filing a defence, the defendant must also file a statement of the names and residential addresses of all persons who were carrying on business under the business name concerned when the proceedings were commenced.

(3)  The court may order that a defendant’s notice of appearance or defence be struck out if the defendant has failed to comply with subrule (2).

7.22 Plaintiff to amend documents in the proceedings to replace business name with defendant’s own name (cf SCR Part 64, rule 5; DCR Part 46, rule 4; LCR Part 35, rule 4)

(1)  In any proceedings in which a defendant is sued under a business name, the plaintiff must take such steps as are reasonably practicable:

(a)  to ascertain the name and residential address of the defendant, and

(b)  to amend such documents in the proceedings as will enable the proceedings to be continued against the defendant in his or her own name.

(2)  In any such proceedings, the plaintiff may not, except by leave of the court, take any step in the proceedings other than:

(a)  the steps of filing and serving originating process, and

(b)  steps to ascertain the name and residential address of the defendant,

until the documents in the proceedings have been amended as referred to in subrule (1) (b).

Division 6 Relators

7.23 Relators (cf SCR Part 4, rule 5)

(1)  A relator must act by a solicitor.

(2)  A solicitor may not act for a relator in any proceedings unless:

(a)  the relator has authorised the solicitor to act in that regard, and

(b)  a copy of the instrument authorising the solicitor to act in that regard has been filed.

Division 7 Appointment and removal of solicitors

7.24 Power to act by solicitor (cf SCR Part 66, rule 1; DCR Part 48, rule 1; LCR Part 37, rule 1)

(1)  Every act, matter or thing which, by or under the Civil Procedure Act 2005 or these rules or otherwise by law, is required or allowed to be done by a party may be done by his or her solicitor.

(2)  Subrule (1) does not apply where the context or subject-matter otherwise indicates or requires.

7.25 Adverse parties (cf SCR Part 66, rule 2; DCR Part 48, rule 2; LCR Part 37, rule 2)

If a solicitor or a partner of the solicitor is a party to any proceedings, or acts as solicitor for a party to any proceedings, that solicitor may not act for any other party in the proceedings, not in the same interest, except by leave of the court.

7.26 Change of solicitor or agent (cf SCR Part 66, rules 3 and 4; DCR Part 48, rule 4; LCR Part 37, rule 4)

(1)  A party for whom there is a solicitor on the record in any proceedings may change solicitors.

(1A)  The new solicitor on the record must hold an unrestricted practising certificate.

(2)  A solicitor who has another solicitor acting as his or her agent in relation to a party may change agents.

(3)  A party who changes solicitors, or whose solicitor changes agents, must file notice of the change.

(4)  A copy of the notice of change, as filed, must be served on all other active parties and, if practicable, on the former solicitor or agent.

rule 7.26: Am 2009 (88), Sch 1 [9] [10].

7.27 Removal of solicitor (cf SCR Part 66, rule 6; DCR Part 48, rule 4; LCR Part 37, rule 4)

(1)  A party that terminates the authority of a solicitor to act on the party’s behalf must file notice of the termination.

(2)  A copy of the notice of termination, as filed, must be served on all other active parties and, if practicable, on the former solicitor.

(3)  Filing and service of the notice of termination on the other parties may be effected by the former solicitor.

(4)  This rule does not apply to a change of solicitor referred to in rule 7.26.

7.28 Appointment of solicitor by previously unrepresented party (cf SCR Part 66, rule 5; DCR Part 48, rule 3; LCR Part 37, rule 3)

(1)  A party that acts for himself or herself in any proceedings may afterwards appoint a solicitor to act in the proceedings on the party’s behalf.

(2)  A party that appoints a solicitor as referred to in subrule (1) must file and serve notice of the appointment.

7.29 Withdrawal of solicitor (cf SCR Part 66, rule 7; DCR Part 48, rule 4; LCR Part 37, rule 4)

(1)  A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties.

(2)  Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change:

(a)  in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or

(b)  in any other case, at least 7 days before doing so.

(3)  Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected.

(4)  A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.

rule 7.29: Am 2009 (166), Sch 1 [3].

7.30 Effect of change (cf SCR Part 66, rule 8; DCR Part 48, rule 5; LCR Part 37, rule 5)

A change for which notice is required or permitted to be given under this Division does not take effect:

(a)  as regards the court, until the notice is filed, and

(b)  as regards any person on whom it is required or permitted to be served, until a copy of the notice, as filed, is served on that person.

7.31 Actions by a solicitor corporation (cf SCR Part 66, rule 10)

Where, by or under the Civil Procedure Act 2005 or these rules or otherwise by law:

(a)  any act, matter or thing is authorised or required to be done by a solicitor for a person, and

(b)  the solicitor is a solicitor corporation, and

(c)  the act, matter or thing can, in the circumstances of the case, only be done by a natural person,

the act, matter or thing may be done by a solicitor who is a director, officer or employee of the corporation.

Division 8 Commencement of proceedings under particular Acts

pt 7, div 8: Ins 2007 (579), Sch 4 [1].

7.32 Proceedings under the Confiscation of Proceeds of Crime Act 1989

(1)  Without limiting rule 7.1 (1), an appropriate officer within the meaning of the Confiscation of Proceeds of Crime Act 1989 may commence and carry on proceedings in the Local Court by a police prosecutor in relation to an application under that Act:

(a)  for a pecuniary penalty order, forfeiture order or drug proceeds order under that Act, or

(b)  for confirmation of a freezing notice.

(2)  Once proceedings of the kind referred to in subrule (1) (a) or (b) (the original proceedings) have been commenced under the Confiscation of Proceeds of Crime Act 1989 in relation to any person, whether in the Local Court or elsewhere, any further proceedings under that Act in relation to the same person (whether or not they form part of, or relate to, the original proceedings), are to be commenced by notice of motion filed in the original proceedings.

Note—

Pursuant to rule 6.4, the original proceedings must be commenced by summons.

rule 7.32: Ins 2007 (579), Sch 4 [1]. Am 2007 (579), Sch 4 [2].

Division 9 Court appointed referral for legal assistance

pt 7, div 9: Ins 2008 (494), Sch 1 [4].

7.33 Objectives (cf SCR Part 66A, rule 1; DCR Part 28C, rule 1)

(1)  In the interpretation of this Division, preference must be given to a construction that will promote, and be consistent with, the purpose in subrule (2) and the statements in subrules (3) and (4).

(2)  The purpose of this Division is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance.

(3)  The provision of legal assistance under this Division is not intended to be a substitute for legal aid.

(4)  A referral under this Division is not an indication that the court has formed an opinion on the merits of a litigant’s case.

(5)  Nothing in this Division requires the court to make a referral, or to consider a litigant’s case for referral, under this Division.

rule 7.33: Ins 2008 (494), Sch 1 [4].

7.34 Definitions (cf SCR Part 66A, rule 2; DCR Part 28C, rule 2)

In this Division:

litigant, in relation to any proceedings, means:

(a)  a party to the proceedings, or

(b)  a person who has been served with a subpoena in the proceedings, or

(c)  a person who has applied to be joined in the proceedings.

Pro Bono Panel means the list of barristers and solicitors referred to in rule 7.35.

registrar means:

(a)  in relation to the Supreme Court, the principal registrar of that Court or any registrar of that Court nominated by the principal registrar, and

(b)  in relation to the Land and Environment Court, the registrar of that Court, and

(c)  in relation to the District Court when sitting at a proclaimed place (within the meaning of the District Court Act 1973), the registrar of the District Court for that place, and

(d)  in relation to the Local Court, the registrar for that Local Court.

scheme means the scheme for the provision of legal assistance to litigants under this Division.

rule 7.34: Ins 2008 (494), Sch 1 [4]. Am 2009 (326), Sch 1 [2].

7.35 Pro Bono Panel (cf SCR Part 66A, rule 3; DCR Part 28C, rule 3)

The registrar may maintain a list of persons:

(a)  who are barristers or solicitors, and

(b)  who have agreed to participate in the scheme in relation to that court.

rule 7.35: Ins 2008 (494), Sch 1 [4].

7.36 Referral to a barrister or solicitor (cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)

(1)  If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(2)  For the purposes of subrule (1), the court may take into account:

(a)  the means of the litigant, and

(b)  the capacity of the litigant to obtain legal assistance outside the scheme, and

(c)  the nature and complexity of the proceedings, and

(d)  any other matter that the court considers appropriate.

(2A)  The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.

(3)  The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.

(4)  If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.

(4A)  If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant’s referral, the registrar may make an order terminating the litigant’s referral.

(5)  The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.

(6)  A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.

rule 7.36: Ins 2008 (494), Sch 1 [4]. Am 2009 (166), Sch 1 [4] [5].

7.37 Kind of assistance (cf SCR Part 66A, rule 5; DCR Part 28C, rule 5)

A referral may be made for the following kinds of assistance:

(a)  advice in relation to the proceedings,

(b)  representation on directions hearing, interlocutory or final hearing, arbitration or mediation,

(c)  drafting or settling of documents to be filed or used in the proceedings,

(d)  representation generally in the conduct of the proceedings or of part of the proceedings.

rules 7.37, 7.38: Ins 2008 (494), Sch 1 [4].

7.38 Provision of assistance by barrister or solicitor (cf SCR Part 66A, rule 6; DCR Part 28C, rule 6)

Subject to rule 7.39, if a barrister or solicitor agrees to accept a referral, he or she must provide assistance to the litigant in accordance with the referral.

rules 7.37, 7.38: Ins 2008 (494), Sch 1 [4].

7.39 Cessation of assistance (cf SCR Part 66A, rule 7; DCR Part 28C, rule 7)

(1)  A barrister or solicitor who has agreed to accept a referral may cease to provide legal assistance to the litigant only:

(a)  in the circumstances set out in any practice rules governing professional conduct that apply to the barrister or solicitor, or

(b)  with the written agreement of the litigant, or

(c)  with the leave of the registrar.

(2)  If a barrister or solicitor ceases to provide legal assistance to a litigant, the barrister or solicitor must inform the registrar in writing within 7 days of so ceasing.

(3)  If a barrister or solicitor ceases to provide legal assistance to a litigant, the referral of the litigant for legal assistance in the proceedings concerned is taken, unless the court otherwise orders, to have been terminated on that cessation.

rule 7.39: Ins 2008 (494), Sch 1 [4]. Am 2009 (166), Sch 1 [6].

7.40 Application for leave (cf SCR Part 66A, rule 8; DCR Part 28C, rule 8)

(1)  An application by a barrister or solicitor to the registrar for leave to cease to provide legal assistance must be in writing and must briefly state the reasons for the application.

(2)  A copy of the application for leave must be served on the litigant.

(3)  An application for leave may be heard by the registrar in the absence of the public and without any attendance by or on behalf of any person.

(4)  In deciding whether to grant leave under this rule, the registrar may consider any of the following matters:

(a)  whether the barrister or solicitor would be likely to be able to cease to provide legal assistance to the litigant under any practice rules governing professional conduct that apply to the barrister or solicitor,

(b)  any conflict of interest that the barrister or solicitor may have,

(c)  whether there is a substantial disagreement between the barrister or solicitor and the litigant in relation to the conduct of the litigation,

(d)  any view of the barrister or solicitor:

(i)  that the litigant’s case is not well founded in fact or law, or

(ii)  that the litigant’s prosecution of the litigation is an abuse of process,

(e)  whether the barrister or solicitor lacks the time to provide adequate legal assistance to the litigant because of other professional commitments,

(f)  whether the litigant has refused or failed to pay any disbursements requested under rule 7.42,

(g)  whether it is unfair to the barrister or solicitor to require him or her to continue to provide legal assistance under the scheme,

(h)  any other matter that the registrar considers relevant.

(5)  An application for leave under this rule and any related correspondence:

(a)  is confidential, and

(b)  is not part of the proceedings in relation to which the referral was made, and

(c)  does not form part of the court file in relation to those proceedings.

rules 7.40–7.42: Ins 2008 (494), Sch 1 [4].

7.41 Costs (cf SCR Part 66A, rule 9; DCR Part 28C, rule 9)

(1)  Subject to subrules (2) and (3) and rule 7.42, a barrister or solicitor who provides legal assistance to a litigant under the scheme must not seek or recover any costs for the legal assistance.

(2)  If an order for costs is made in favour of a litigant who is assisted under the scheme, the barrister or solicitor who has provided the legal assistance is entitled to recover the amount of costs that another person is required to pay under the order.

(3)  A barrister or solicitor must account to the litigant for any money received by the barrister or solicitor in respect of any disbursements that have been paid by the litigant.

rules 7.40–7.42: Ins 2008 (494), Sch 1 [4].

7.42 Disbursements (cf SCR Part 66A, rule 10; DCR Part 28C, rule 10)

A barrister or solicitor who provides legal assistance to a litigant under the scheme may request the litigant to pay any disbursements that have been, or may reasonably be, incurred by the barrister or solicitor on the litigant’s behalf in connection with the legal assistance.

rules 7.40–7.42: Ins 2008 (494), Sch 1 [4].

Part 8 Venue

pt 8, note: Rep 2007 (579), Sch 2 [3].

8.1 Venue at which proceedings to be heard (cf Act No 9 1973, section 4; DCR Part 2A, rule 1; LCR Part 1, rule 3, Part 3, rule 2)

(1)  Unless the court orders otherwise, the venue at which proceedings are to be heard is the venue specified by the plaintiff in the originating process.

(2)  The venue so specified must be a venue at which the court sits.

8.2 Change of venue generally (cf Act No 9 1973, section 40; DCR Part 2A, rule 4)

(1)  If it appears to the court:

(a)  that a fair or unprejudiced trial of a question arising or likely to arise in or in connection with any proceedings cannot otherwise be had, or

(b)  for any other reason it is appropriate for the venue of any proceedings to be changed,

the court may, subject to this Part, make an order changing the venue of the proceedings.

(2)  The judicial officer before whom proceedings are being heard by the court may direct that proceedings commenced at one location be continued at another location at which he or she is authorised to hear those proceedings.

8.3 Part not to apply to orders for examination

This Part does not apply to the examination of a judgment debtor under an order for examination.

Part 9 Cross-claims

9.1 Making of cross-claim (cf SCR Part 6, rule 10; DCR Part 20, rule 10; LCR Part 18, rule 1)

(1)  A party (the cross-claimant) may make a cross-claim:

(a)  in proceedings commenced by statement of claim, within the time limited for the party to file a defence, or

(b)  in proceedings commenced by summons, before the return day specified in the summons,

or within such further time as the court may allow.

(2)  A cross-claim is to be made:

(a)  by statement of cross-claim, in the case of a cross-claim in proceedings commenced by statement of claim, or

(b)  by cross-summons, in the case of a cross-claim in proceedings commenced by summons.

(3)  Subject to this Part, these rules apply to a statement of cross-claim and cross-summons in the same way as they apply to a statement of claim and summons, respectively.

(4)  In any proceedings, each cross-claim is to be numbered (“first cross-claim”, “second cross-claim” and so on) in the order in which the cross-claims are filed.

(5)  For the purposes of rule 4.2 (2) (d), the identification of a document as a cross-claim must include the number given to the cross-claim under this rule.

rule 9.1: Am 2007 (164), Sch 1 [3].

9.2 Existing parties need not enter separate appearance

A party against whom a cross-claim is made (the cross-defendant) is not required to enter an appearance if he or she:

(a)  is a party to the proceedings in which the cross-claim is made, and

(b)  has entered an appearance in those proceedings.

9.3 Cross-claimant may rely on previous pleadings (cf SCR Part 6, rule 11; DCR Part 20, rule 11; LCR Part 18, rule 1)

A cross-claimant may, in the cross-claim, plead all or any of the facts on which he or she relies by reference to the previous pleadings in the proceedings from which the cross-claim arises.

9.4 Defence

The cross-defendant must include in his or her defence to a statement of cross-claim any grounds on which he or she disputes the claim made by the cross-claimant.

rule 9.4: Am 2005 (625), Sch 1 [9].

9.5 Default of cross-defendant to cross-claim (cf SCR Part 6, rule 7; DCR Part 20, rule 7)

If a cross-defendant does not file a defence to a statement of cross-claim in accordance with these rules or an order of the court:

(a)  any judgment (including summary judgment, judgment by default or judgment by consent) on any claim, question or issue in the proceedings, so far as it is relevant to the cross-claim, and

(b)  any decision (including any decision by consent) on any claim, question or issue in the proceedings, so far as it is relevant,

is binding, as between the parties to the cross-claim, unless the court orders otherwise.

rule 9.5: Am 2005 (625), Sch 1 [10].

9.6 Service on active parties (cf SCR Part 6, rule 5; DCR Part 20, rule 5)

(1)  If a cross-defendant is an active party, personal service of a statement of cross-claim or cross-summons on that party is not required.

(2)  Rule 10.16 (Service by filing) does not apply to service of a statement of cross-claim or cross-summons.

9.7 Service on new parties (cf SCR Part 6, rule 5; DCR Part 20, rule 5; LCR Part 18, rule 1)

(1)  This rule applies to the service of a statement of cross-claim or cross-summons on a person who is not already a party to the proceedings from which the cross-claim arises.

(2)  When serving the statement of cross-claim or cross-summons, the cross-claimant must serve on the cross-defendant both the originating process in the proceedings from which the cross-claim arises and such of the following documents as have been filed by or served on the cross-claimant:

(a)  in proceedings commenced by statement of claim or in which a statement of claim has been filed, any other pleadings,

(b)  in proceedings commenced by summons, any other cross-summonses,

(c)  any notices of motion not finally disposed of,

(d)  any affidavits, other than affidavits that are not relevant to the questions arising on the cross-claim,

(e)  any other documents that have been served by the plaintiff on the defendant, or by the defendant on the plaintiff, and are intended to be relied on,

(f)  any amendments to any of the documents referred to in paragraphs (a)–(e).

(3)  Service of a statement of cross-claim or cross-summons must be effected in accordance with the provisions of these rules with respect to service of originating process.

9.8 Directions (cf SCR Part 6, rule 4; DCR Part 20, rule 4; LCR Part 18, rule 4)

The court, at any stage of the proceedings:

(a)  may order that any cross-claim, or any question in or arising on any cross-claim, is to be separately tried, and

(b)  may direct generally the extent to which the usual procedures at a trial or hearing are to be modified because of the joinder of the cross-defendant.

9.9 Proceedings to continue together (cf SCR Part 6, rule 6 (1); DCR Part 20, rule 6 (1); LCR Part 18, rule 3 (1))

Unless the court orders otherwise, proceedings on a cross-claim are to be carried on together with the proceedings from which the cross-claim arises.

9.10 Cross-claim may be separately prosecuted (cf SCR Part 6, rule 8; DCR Part 20, rule 8; LCR Part 18, rule 3 (5))

(1)  A cross-claim may proceed even if:

(a)  judgment has been entered on the originating process in the proceedings from which the cross-claim arises or any other cross-claim in the proceedings, or

(b)  the proceedings on the originating process or any other cross-claim have been stayed, dismissed, withdrawn or discontinued.

(2)  Proceedings on the originating process in the proceedings from which the cross-claim arises may proceed even if:

(a)  judgment has been entered on any cross-claim in the proceedings, or

(b)  the proceedings on any such cross-claim have been stayed, dismissed, withdrawn or discontinued.

9.11 Contribution or indemnity (cf SCR Part 6, rule 9; DCR Part 20, rule 9; LCR Part 19, rule 1)

(1)  If a defendant makes a cross-claim for contribution or indemnity in respect of a claim made against the defendant in the proceedings, judgment on the cross-claim:

(a)  is not to be entered except by leave of the court, and

(b)  is not to be enforced until any judgment in the proceedings against the defendant has been satisfied.

(2)  If a cross-claim in any proceedings includes a claim for contribution under section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of a claim made in the proceedings against the party by whom it is filed, a defence to the cross-claim, or subsequent pleadings on the cross-claim, may not be filed unless the court so directs.

Part 10 Service of documents generally

Division 1 Service generally

10.1 Service of filed documents (cf SCR Part 15, rule 28)

(1)  Unless the court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party.

(2)  In the case of proceedings in the Local Court, an originating process may, and a defence must, be served on the other parties, on behalf of the party by whom it was filed, by an officer of the Local Court.

Note—

See rules 10.7 and 10.8 as to how service is to be effected by a court.

(3)  Despite subrule (2), a defence that is filed in proceedings in the Local Court by means of the ECM system (within the meaning of Part 3) must be served on the other parties by the party that filed the defence rather than by an officer of the Local Court.

rule 10.1: Am 2010 (527), rule 3.

10.2 Service of affidavits (cf SCR Part 38, rule 7; DCR Part 30, rule 7; LCR Part 25, rule 7)

(1)  A party intending to use an affidavit that has not been filed must serve it on each other interested party not later than a reasonable time before the occasion for using it arises.

(2)  A party who fails to serve an affidavit as required by subrule (1) may not use the affidavit except by leave of the court.

10.3 Service of originating process in Australia (cf SCR Part 10, rule 2B)

(1)  This rule applies to proceedings in the Supreme Court.

(2)  Subject to this Part, originating process may be served anywhere in Australia, whether in New South Wales or elsewhere.

(3)  An originating process for service in Australia, but outside New South Wales, must bear a statement either that the plaintiff intends to proceed under the Service and Execution of Process Act 1992 of the Commonwealth or that the plaintiff intends to proceed under the Uniform Civil Procedure Rules 2005.

(4)  The plaintiff may proceed otherwise than in accordance with the intention stated under subrule (3), but only with the leave of the court.

10.4 Operation of Service and Execution of Process Act 1992 of the Commonwealth (cf SCR Part 9, rule 1A)

This Part does not limit the operation of the Service and Execution of Process Act 1992 of the Commonwealth or any other law of the Commonwealth.

Division 2 Manner of service

10.5 The various methods of service (cf SCR Part 9, rules 3 and 4; DCR Part 8, rules 3, 9 and 12; LCR Part 7, rules 3, 9 and 12)

(1)  Subject to these rules, a document may be served on a person:

(a)  by means of personal service, or

(b)  by posting a copy of the document, addressed to the person:

(i)  to the person’s address for service, or

(ii)  if the person is not an active party, to the person’s business or residential address, or

(c)  by leaving a copy of the document, addressed to the person:

(i)  at the person’s address for service, or

(ii)  if the person is not an active party, at the person’s business or residential address,

with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, or

(d)  in the case of service on a corporation, by serving the document on the corporation in any manner in which service of such a document may, by law, be served on the corporation.

(2)  In the case of a person having an address for service that is a solicitor’s office address, service of a document on the person may also be effected:

(a)  if the notice advising the address for service includes a DX address, by leaving a copy of the document, addressed to the solicitor, in that DX box at that address or in another DX box for transmission to that DX box, or

(b)  if the notice advising the address for service includes a fax number, by faxing a copy of the document to that number, or

(c)  if the notice advising the address for service includes an electronic service address, by transmitting an electronic copy of the document to that address.

(3)  Unless the contrary is proved, the time at which a document is taken to have been served is:

(a)  in the case of a document that is left in a DX box in accordance with subrule (2) (a), at the end of the second day following the day on which the copy is so left, or

(b)  in the case of a copy of a document that is faxed in accordance with subrule (2) (b), at the end of the first day following the day on which the copy is so faxed.

Note—

See section 14M of the Electronic Transactions Act 2000 as to when an electronic copy of a document is taken to have been delivered to an electronic mail address. See also Division 3 of this Part as to how personal service is to be effected.

rule 10.5: Am 2005 (395), Sch 1 [19]; 2007 (579), Sch 1 [8].

10.6 Service in accordance with agreement between parties (cf SCR Part 9, rule 9; DCR Part 8, rule 15; LCR Part 7, rule 15)

(1)  In any proceedings, any document (including originating process) may be served by one party on another (whether in New South Wales or elsewhere) in accordance with any agreement, acknowledgment or undertaking by which the party to be served is bound.

(1A)  In relation to the service of an originating process in proceedings on a claim for possession of land, the agreement, acknowledgment or undertaking referred to in subrule (1) must be made after the originating process is filed but before it is served.

(2)  Service in accordance with subrule (1) is taken for all purposes (including for the purposes of any rule requiring personal service) to constitute sufficient service.

rule 10.6: Am 2009 (326), Sch 1 [3].

10.7 Notice given or served by court (cf SCR Part 9, rule 14)

Subject to any order of the court, any notice or other document that is required to be given to or served on any party by the court, or by any officer of the court, is taken to have been given or served if served in any manner in which a document not requiring personal service may be served under this Part.

10.8 Service of defence by court (cf LCR Part 9, rule 3)

(1)  This rule applies to proceedings in the Local Court.

(2)  When filing a defence, whether in person, by post or by use of an authorised DX system, a party must lodge additional copies of the defence for service on each of the other active parties.

(3)  On receiving such copies, an officer of the court:

(a)  must mark each copy with the date of acceptance of the document, and

(b)  must return one copy to the party by which it was filed, and

(c)  must cause the remaining copies to be served on each of the other active parties.

10.9 Service of process on defendant operating under unregistered business name (cf SCR Part 64, rule 3; DCR Part 46, rule 2; LCR Part 35, rule 2)

(1)  This rule applies to any proceedings against a person in respect of anything done or omitted to be done by the person in the course of, or in relation to, a business carried on under an unregistered business name.

(2)  For the purposes of any such proceedings, any document may be served on the defendant, whether sued in his or her own name or under the unregistered business name:

(a)  by leaving it with a person who is apparently engaged in the business, and apparently of or above the age of 16 years, at any place at which business is carried on under that name, or

(b)  by sending it by post, addressed to the defendant, to any place at which business is carried on under that name,

whether or not the place concerned is within New South Wales.

(3)  For the purposes of any such proceedings:

(a)  service of a document in accordance with subrule (2) is taken to constitute personal service, and

(b)  the place at which the document is left, or to which the document is sent by post, is taken to be the place of service of the document, and

(c)  in the case of a document sent by post, the document is taken to have been served at the end of 7 days after the day on which it was sent.

(4)  This rule does not limit any other law with respect to the service of documents.

10.10 Service of process on defendant operating under registered business name (cf SCR Part 64, rule 3)

(1)  This rule applies to any proceedings against a person carrying on business under a registered business name in respect of anything done or omitted to be done by the person in the course of, or in relation to, business carried on under that name.

(2)  For the purposes of any such proceedings, any document may be served on the defendant, whether sued in his or her own name or under the registered business name:

(a)  by leaving it with a person who is apparently engaged in the business, and apparently of or above the age of 16 years, at any place at which business is carried on under that name, or

(b)  by sending it by post, addressed to the defendant:

(i)  to any place at which business is carried on under that name, or

(ii)  to the address for service of any person in whose name the business name is registered under the Business Names Act 2002,

whether or not the place concerned is within New South Wales.

(3)  For the purposes of any such proceedings:

(a)  service of a document in accordance with subrule (2) is taken to constitute personal service, and

(b)  the place at which the document is left, or to which the document is sent by post, is taken to be the place of service of the document, and

(c)  in the case of a document sent by post, the document is taken to have been served at the end of 7 days after the day on which it was sent.

(4)  This rule does not limit any other law with respect to the service of documents.

10.11 Service of process on partner in limited partnership (cf SCR Part 64, rule 3A)

(1)  This rule applies to any proceedings against a partner in a limited partnership (within the meaning of Part 3 of the Partnership Act 1892) in respect of anything done or omitted to be done by any person in the course of, or in relation to, a business carried on by the partnership.

(2)  For the purposes of any such proceedings, any document may be served on the defendant, whether sued in his or her own name or under the firm-name of the partnership:

(a)  by leaving it with a person who is apparently engaged in the business, and apparently of or above the age of 16 years, at the registered office of the partnership, or

(b)  by sending it by post, addressed to the firm-name of the partnership, to the registered office of the partnership.

(3)  For the purposes of any such proceedings:

(a)  service of a document in accordance with subrule (2) is taken to constitute personal service, and

(b)  the place at which the document is left as referred to in subrule (2) (a), or to which the document is sent as referred to in subrule (2) (b), is taken to be the place of service of the document, and

(c)  in the case of a document sent as referred to in subrule (2) (b), the document is taken to have been served at the end of 7 days after the day on which it was sent.

(4)  This rule does not limit any other law with respect to the service of documents.

10.12 Service of process on person under legal incapacity (cf SCR Part 63, rule 15)

(1)  This rule applies to any proceedings in which a document is required to be served personally on a person under legal incapacity.

(2)  Personal service on a person under legal incapacity may not be effected otherwise than in accordance with this rule.

(3)  If the person under legal incapacity has a tutor in the proceedings, the document may be served on the tutor.

(4)  The document may be served on any person (including the person under legal incapacity) whom the court may, before or after service, approve.

(5)  If the person to be served is a minor and has no tutor in the proceedings, the document may be served:

(a)  on the person, but only if the person is aged 16 years or more, or

(b)  on a parent or guardian of the person, or

(c)  if the person has no parent or guardian, on a person with whom he or she resides or in whose care he or she is.

(6)  If the person to be served is a protected person (within the meaning of the NSW Trustee and Guardian Act 2009) and has no tutor in the proceedings, the document may be served:

(a)  if the person has a manager in respect of his or her estate, on the manager, or

(b)  if the person does not have a manager, on a person with whom he or she resides or in whose care he or she is.

(7)  Subject to subrule (8), a document served pursuant to this rule must be served in the manner required by these rules in relation to documents of the same kind.

(8)  In addition to any other service required by these rules:

(a)  a judgment or order requiring a person under legal incapacity to do, or refrain from doing, any act, and

(b)  a notice of motion for the committal of a person under legal incapacity, and

(c)  a subpoena addressed to a person under legal incapacity,

must be served personally on the person.

(9)  Subrule (8) does not apply to an order for interrogatories or for discovery or inspection of documents.

rule 10.12: Am 2009 (501), Sch 1 [6].

10.13 Acceptance of service by solicitor (SCR Part 9, rule 7; DCR Part 8, rules 6 and 7; LCR Part 7, rules 6 and 7)

If a solicitor notes on a copy of:

(a)  any originating process, or

(b)  any other document required or permitted to be served in any proceedings, but not required to be personally served,

that he or she accepts service of the document on behalf of any person, the document is taken to have been duly served on that person on the date on which the note is made or on such earlier date of service as may be proved.

10.14 Substituted and informal service generally (cf SCR Part 9, rules 10 and 11; DCR Part 8, rules 5 and 16; LCR Part 7, rules 5 and 16)

(1)  If a document that is required or permitted to be served on a person in connection with any proceedings:

(a)  cannot practicably be served on the person, or

(b)  cannot practicably be served on the person in the manner provided by law,

the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.

(2)  An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.

(3)  If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.

(4)  Service in accordance with this rule is taken to constitute personal service.

10.15 Substituted and informal service of originating process in proceedings for possession of land (cf SCR Part 9, rule 5)

(1)  This rule applies to originating process that is required to be served on a defendant in connection with proceedings for the possession of land but that cannot be served on the defendant without undue delay or expense.

(2)  The court may order that the plaintiff may serve the originating process on the defendant by affixing a copy of the originating process to a conspicuous part of the land.

(3)  An order under subrule (2) may direct that the originating process be taken to have been served on the defendant on the expiry of a specified time.

(4)  If a copy of the originating process has been affixed to a conspicuous part of the land, otherwise than under an order under subrule (2), the court may order that the originating process be taken to have been served on the defendant on a date specified in the order.

(5)  A party may apply for an order under this rule without filing or serving notice of motion.

(5A)  An application for an order under this rule must be supported by an affidavit by the applicant that includes:

(a)  a statement as to the applicant’s knowledge of the defendant’s whereabouts, and

(b)  a statement as to any communications that have occurred between the applicant and the defendant since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail).

(6)  Service in accordance with this rule is taken to constitute personal service.

rule 10.15: Am 2009 (501), Sch 1 [7].

10.16 Service by filing (cf SCR Part 9, rule 12)

(1)  If in any proceedings any document is required or permitted to be served on:

(a)  a person who is in default of appearance, or

(b)  a person who has entered an appearance but is not an active party in the proceedings,

the filing of the document is taken to have the same effect as service of the document on the person unless the court orders otherwise.

(2)  This rule does not apply to any document that is required to be served personally.

10.17 Service of injunctions (cf SCR Part 9, rule 15)

If the court grants an interlocutory injunction, the party may serve notice of the injunction by letter signed by or on behalf of the registrar.

10.18 Service at address for service in other court or tribunal (cf SCR Part 9, rule 8)

If:

(a)  a decision is given or a case is stated in proceedings before any judicial officer or other person (the proceedings below), and

(b)  a party to the proceedings below (the subject party) has an address for service in New South Wales for the purposes of those proceedings at the office of a solicitor (the address below), and

(c)  proceedings (not being proceedings in relation to punishment for contempt) arising out of the proceedings below are commenced in the court (the new proceedings), and

(d)  the plaintiff in the new proceedings has not received notice that the address below has ceased to be applicable,

documents, including the originating process, may be served on the subject party at the address below, until the subject party has an address for service in the new proceedings, as if the address below were the subject party’s address for service in the new proceedings.

10.19 Waiver of objection to service (cf DCR Part 8, rule 5 (3))

A party who files a document in reply to a document alleged to have been served on that party is taken to have waived any objection to the fact or manner of service unless he or she files and serves notice of the objection together with the document so filed.

Division 3 Personal service

10.20 Personal service required only in certain circumstances (cf SCR Part 9, rules 1 and 2; DCR Part 8, rule 3; LCR Part 7, rules 3 and 20)

(1)  Any document required or permitted to be served on a person in any proceedings may be personally served, but need not be personally served unless these rules so require or the court so orders.

(2)  Except as otherwise provided by these rules:

(a)  any originating process, and any order for examination or garnishee order, in proceedings in the Supreme Court, the Industrial Relations Commission (including the Commission when constituted as the Industrial Court), the Land and Environment Court, the District Court or the Dust Diseases Tribunal must be personally served, and

(b)  any originating process in the Local Court must be served in one of the following ways:

(i)  it may be personally served on the defendant,

(ii)  it may be left, addressed to the defendant, at the defendant’s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address,

(iii)  if served by the Local Court, it may be sent by post, addressed to the defendant, to the defendant’s business or residential address in an envelope marked with a return address (being the address of the Local Court but not so identified), and

(c)  any order for examination, garnishee order or subpoena for attendance in proceedings in the Local Court must be served in one of the following ways:

(i)  it may be personally served on the person to whom it is directed,

(ii)  it may be left, addressed to the person to whom it is directed, at that person’s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, and

(d)  any subpoena for production in proceedings in the District Court or the Local Court must be served in one of the following ways:

(i)  it may be served personally on the person to whom it is directed,

(ii)  it may be left, addressed to the person to whom it is directed, at that person’s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address,

(iii)  it may be sent by post, addressed to the person to whom it is directed, to the person’s business or residential address in an envelope marked with the return address of the party at whose request the subpoena was issued.

Note—

As to service by post, see section 76 of the Interpretation Act 1987.

(3)  If an envelope, posted as referred to in subrule (2) (b) (iii), is returned to the court by the postal authority as having not been delivered to the addressee:

(a)  service of the document contained in the envelope is taken not to have been effected, and

(b)  any judgment given or entered on the basis of that service is to be set aside,

and the registrar must so advise the party by whom or on whose behalf it was posted.

(4)  Service of a subpoena in accordance with subrule (2) (c) (ii) or (d) (ii) or (iii) is taken to be personal service for the purposes of rule 33.5 (1).

(5)  Unless an earlier date is proved, a defendant who enters an appearance is taken to have been personally served with the relevant originating process on the date on which appearance was entered.

rule 10.20: Am 2005 No 22, Sch 3 [3]; 2005 (395), Sch 1 [20]–[24]; 2008 (63), Sch 1 [1]; 2009 (570), Sch 1 [3].

10.21 How personal service effected generally (cf SCR Part 9, rule 3; DCR Part 8, rules 3 and 14; LCR Part 7, rules 3 and 14)

(1)  Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document.

(2)  If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person.

(3)  Service in accordance with subrule (2) is taken to constitute personal service.

10.22 Personal service on corporation (cf SCR Part 9, rule 3; DCR Part 8, rule 12; LCR Part 7, rule 12)

Personal service of a document on a corporation is effected:

(a)  by personally serving the document on a principal officer of the corporation, or

(b)  by serving the document on the corporation in any other manner in which service of such a document may, by law, be served on the corporation.

10.23 Personal service on Crown Solicitor (cf SCR Part 9, rule 3; DCR Part 8, rule 7A)

For the purposes of section 6 of the Crown Proceedings Act 1988, personal service of a document on the Crown Solicitor may be duly effected by leaving the document at the office of the Crown Solicitor with a person who is apparently a member of the Crown Solicitor’s staff.

10.24 Personal service on judicial officers (cf SCR Part 9, rules 7A and 7B)

(1)  In proceedings against a judicial officer, personal service of any document may be effected by leaving a copy of the document:

(a)  in the case of a judicial officer of the Supreme Court or District Court, at the office of the principal registrar of that Court, or

(b)  in any other case, at the office of the senior judicial officer of the court at which the decision or determination was made,

addressed, in either case, to the judicial officer on whom it is to be served.

(2)  In subrule (1), judicial officer includes an Assessor within the meaning of the Local Court Act 2007.

rule 10.24: Am 2007 (501), Sch 1 [2]; 2007 (579), Sch 2 [2].

10.25 Personal service on inmate of correctional centre (cf DCR Part 8, rule 11; LCR Part 7, rule 11)

(1)  Personal service of a document on an inmate (within the meaning of the Crimes (Administration of Sentences) Act 1999) is effected by leaving a copy of the document, at the correctional centre at which the inmate is held in custody, with the general manager of the correctional centre.

(2)  Personal service of a document on a detainee (within the meaning of the Children (Detention Centres) Act 1987) is effected by leaving a copy of the document, at the detention centre at which the detainee is held in custody, with the centre manager of the detention centre.

rule 10.25: Am 2009 (501), Sch 1 [8].

10.26 Personal service on person who “keeps house” (cf DCR Part 8, rule 13; LCR Part 7, rule 13)

(1)  If a person keeps house (that is, remains in premises to which a person attempting service cannot lawfully or practicably obtain access), the person attempting service may serve the document on the person keeping house:

(a)  by doing one of the following:

(i)  placing the document in the mail-box for the premises,

(ii)  affixing the document to an outer door of the premises,

(iii)  if the person attempting service cannot lawfully or practicably obtain access to any such mail-box or door, affixing the document to some part of the premises, or to some fence or wall surrounding the premises, as near as practicable to the principal door or entrance to the premises, and

(b)  within 24 hours after doing so, by posting a notice to the premises, addressed to the person keeping house, informing the person of the fact that the document has been so placed or affixed.

(2)  Service in accordance with subrule (1) is taken to constitute personal service.

10.27 Proof of identity (cf SCR Part 9, rule 4A; DCR Part 8, rule 17; LCR Part 7, rule 17)

For the purposes of proof of service, evidence of a statement by a person of his or her identity or of his or her holding some office is evidence of his or her identity or that he or she holds that office, as the case may be.

Division 4 Service under particular Acts

pt 10, div 4 (rule 10.28): Ins 2007 (579), Sch 4 [3].

10.28 Service under the Confiscation of Proceeds of Crime Act 1989

In any proceedings in which notice under the Confiscation of Proceeds of Crime Act 1989 is required to be given in accordance with rules of court, the notice is to be given by filing it, and serving it on:

(a)  all active parties, and

(b)  all other persons to whom it is required by that Act to be given,

as soon as practicable after it has been filed.

pt 10, div 4 (rule 10.28): Ins 2007 (579), Sch 4 [3].

10.29 Service under the Industrial Relations Act 1996

In any proceedings under the Industrial Relations Act 1996 in which a document is required to be served on an industrial organisation within the meaning of that Act, service of the document must be effected:

(a)  by serving it personally on the organisation’s secretary or principal officer, or

(b)  by leaving it at the organisation’s registered office with a person who is apparently employed by the organisation, or

(c)  by sending it by post, addressed to the organisation’s secretary or principal officer:

(i)  to the organisation’s address for service in the proceedings, or

(ii)  if it has no address for service in the proceedings, to the organisation’s registered office.

rule 10.29: Ins 2009 (570), Sch 1 [4].

Part 11 Service of documents outside Australia and service of external process

pt 11, hdg: Subst 2006 (391), Sch 1 [4].

Division 1 General

11.1 Application of Part

(1)  This Part applies to proceedings in the Supreme Court.

(2)  For the purposes of this Part, a reference to Australia includes a reference to the external Territories.

11.2 Cases for service of originating process (cf SCR Part 10, rule 1A)

(1)  Originating process may be served outside Australia in the circumstances referred to in Schedule 6.

(2)  This rule extends to originating process to be served outside Australia in accordance with the Hague Convention.

rule 11.2: Am 2009 (326), Sch 1 [4].

11.3 Notice to the defendant served outside Australia (cf SCR Part 10, rule 2A)

(1)  If originating process is intended to be served on a defendant outside Australia, a notice to that effect must be included in the originating process.

(2)  This rule does not apply to originating process that is intended to be served on a defendant outside Australia in accordance with the Hague Convention.

Note—

Division 2 of Part 11A deals with the service of local judicial documents in a country (other than Australia) that is a party to the Hague Convention.

rule 11.3: Am 2009 (326), Sch 1 [5].

11.4 Leave for plaintiff to proceed where no appearance by defendant (cf SCR Part 10, rule 2)

(1)  If originating process is served on a defendant outside Australia, and the defendant does not enter an appearance, the plaintiff may not proceed against the defendant except by leave of the Supreme Court.

(2)  A motion for leave under subrule (1) may be made without serving notice of motion on the defendant.

Note—

Rule 11.8 provides for the interaction between this Division and Part 11A (which deals with service of judicial documents under the Hague Convention). See Division 3 of Part 11A in relation to default judgment in proceedings in the Supreme Court after service overseas of a local judicial document.

rule 11.4: Am 2009 (326), Sch 1 [6].

11.5 Service of documents other than originating process (cf SCR Part 10, rule 3)

Service outside Australia of a document other than originating process is valid only if it is effected pursuant to the leave of the Supreme Court or is subsequently confirmed by the Supreme Court.

11.6 Mode of service (cf SCR Part 10, rule 5)

A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.

11.7 Setting aside originating process served outside Australia (cf SCR Part 10, rule 6A)

(1)  The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia.

(2)  Without limiting subrule (1), the Supreme Court may make an order under this rule:

(a)  on the ground that the service of the originating process is not authorised by these rules, or

(b)  on the ground that the court is an inappropriate forum for the trial of the proceedings.

11.8 Operation of Commonwealth laws and Hague Convention (cf SCR Part 10, rule 6)

This Part does not require the leave of the Supreme Court for any service or other thing that may be effected or done under any law of the Commonwealth, the Hague Convention or Part 11A.

Note—

Part 11A deals with service of judicial documents under the Hague Convention.

rule 11.8: Am 2009 (326), Sch 1 [7] [8].

Division 2 Service outside Australia in accordance with Attorney General’s arrangements

11.8A Application of Division

This Division does not apply to any document that is intended to be served on a person outside Australia in accordance with the Hague Convention.

Note—

Division 2 of Part 11A deals with the service of local judicial documents in a country (other than Australia) that is a party to the Hague Convention.

rule 11.8A: Ins 2009 (326), Sch 1 [9].

11.9 Definitions (cf SCR Part 10, rule 7)

In this Division:

applicant means the person by whom an application is made under rule 11.10 (1) (a).

participating country means:

(a)  any country that is a signatory to an international convention with respect to the service of documents in that country to which Australia is a signatory, or

(b)  in relation to particular proceedings, any other country declared by the Attorney General, or by some other person authorised by the Attorney General for the purposes of this definition, by notice filed in the proceedings, to be a country to which this Division applies.

undertaking as to expenses means an undertaking by an applicant or his or her solicitor to pay to the registrar an amount equal to the sum of all expenses incurred in consequence of the request for service.

rule 11.9: Am 2009 (501), Sch 1 [9].

11.10 Filing of requisite documents (cf SCR Part 10, rules 8, 9 and 10)

(1)  A person requiring a document to be served in a participating country may file the following documents in the Supreme Court:

(a)  an application to the principal registrar of the Supreme Court that a sealed copy of a document be transmitted to that country for service on the person specified in the application as the person to be served,

(b)  if the applicant requires service of the document under an international convention with respect to the service of documents to which that country and Australia are both signatories, a statement to that effect,

(c)  the document to be served and (unless English is an official language of the country concerned) a translation of the document,

(d)  if any special manner of service is required, a request for service in that manner and (unless English is an official language of the country concerned) a translation of the request,

(e)  an undertaking as to expenses,

together with such further copies of those documents as the principal registrar may direct.

(2)  A translation of a document referred to in subrule (1):

(a)  must be in an official language of the country in which service is required, and

(b)  must bear a certificate by the translator, in that language, stating his or her qualifications and certifying that the translation is a correct translation of the document.

11.11 Procedure on filing and lodgment (cf SCR Part 10, rules 11 and 12)

(1)  After all relevant documents have been filed as referred to in rule 11.10, the principal registrar of the Supreme Court must seal them and send the lodged documents to the Director-General of the Attorney General’s Department for transmission for service, together with such letter of request (if any) as may be necessary.

(2)  A certificate as to service, attempted service or non-service of any document so sent that is issued by:

(a)  a judicial authority or other responsible person in the country concerned, or

(b)  a British or Australian consular authority in the country concerned,

is evidence of the matters stated in the certificate.

11.12 Recovery of unpaid expenses (cf SCR Part 10, rule 13)

If an applicant who has given an undertaking as to expenses does not, within 7 days after service on the applicant of an account of expenses incurred in relation to his or her application, pay to the principal registrar of the Supreme Court the amount of the expenses, the Supreme Court:

(a)  may order the applicant to pay the amount of the expenses to the principal registrar, and

(b)  may stay the proceedings, until payment is made, so far as concerns the whole or any part of any claim for relief by the applicant.

Division 3 Service of external process

pt 11, div 3: Ins 2006 (391), Sch 1 [5].

11.13 Application (cf SCR Part 57, rule 1)

(1)  Subject to subrule (2), this Division applies to the service in the State of any document that is required in connection with civil proceedings pending before a court outside the State, where:

(a)  a letter of request from the court has been received by the principal registrar of the Supreme Court, and

(b)  either:

(i)  the request is for service pursuant to a convention, or

(ii)  the Attorney General, or some other person authorised by the Attorney General for the purposes of this rule, certifies that effect ought to be given to the request.

(2)  This Division does not apply to the service in this State of any foreign judicial document (within the meaning of Part 11A) in accordance with a request for service made under the Hague Convention.

Note—

Division 4 of Part 11A deals with the service in New South Wales of foreign judicial documents originating in countries that are parties to the Hague Convention.

rule 11.13: Ins 2006 (391), Sch 1 [5]. Am 2007 (501), Sch 1 [2]; 2008 (494), Sch 1 [5]; 2009 (326), Sch 1 [10] [11].

11.14 Requisite documents (cf SCR Part 57, rule 2)

In order that service may be effected in accordance with this Division, the following documents must be delivered to the principal registrar of the Supreme Court, unless the principal registrar otherwise directs:

(a)  the document to be served and 2 copies of it,

(b)  a copy of the letter of request,

(c)  if the document or letter is not in English, a translation of it in English and a copy of the translation.

rule 11.14: Ins 2006 (391), Sch 1 [5]. Am 2007 (501), Sch 1 [2]; 2009 (326), Sch 1 [12].

11.15 Service (cf SCR Part 57, rule 3)

(1)  The principal registrar of the Supreme Court is to request the Sheriff or some other person to serve the document concerned.

(2)  The document may be served in any manner in which originating process in proceedings in the Supreme Court may be served, including substituted service pursuant to rule 10.14.

(3)  Proceedings for an order for substituted service may be commenced only by the Attorney General.

rules 11.15–11.17: Ins 2006 (391), Sch 1 [5]. Am 2007 (501), Sch 1 [2].

11.16 Affidavit of service (cf SCR Part 57, rule 4)

(1)  After the document has been served or attempts to serve the document have failed, the Sheriff or other person requested to serve the document must make an affidavit of service, and lodge it together with such further copies of the affidavit as the principal registrar of the Supreme Court may direct.

(2)  The affidavit must state when, where and how service was effected or attempted, and the costs incurred in connection with the service or attempted service.

rules 11.15–11.17: Ins 2006 (391), Sch 1 [5]. Am 2007 (501), Sch 1 [2].

11.17 Certificate (cf SCR Part 57, rule 5)

(1)  If the request for service is made pursuant to a convention, the principal registrar of the Supreme Court must give either:

(a)  a certificate complying with subrule (2), or

(b)  such other certificate as is appropriate to the terms of the relevant convention.

(2)  A certificate referred to in subrule (1) (a):

(a)  must certify:

(i)  that the document or a copy of it was served on the person at the time, and in the manner, specified in the certificate, or

(ii)  if attempts to effect service failed, that service has failed and the reasons for the failure, and

(b)  must certify the amount of the costs incurred.

(3)  If the request for service is made otherwise than pursuant to a convention, the principal registrar of the Supreme Court must give either:

(a)  a certificate complying with subrule (4), or

(b)  such other certificate as is appropriate to the terms of the letter of request.

(4)  A certificate referred to in subrule (3) (a):

(a)  must annex the letter of request, a copy of the document to be served and of any translation, and a copy of the affidavit under rule 11.16, and

(b)  must identify the annexures, and

(c)  must certify:

(i)  that the manner of service of the document and the proof of service are such as are required by these rules in relation to the service of originating process of the Supreme Court, or

(ii)  if attempts to effect service failed, that service has failed and the reasons for the failure, and

(d)  must certify the amount of the costs incurred.

(5)  In each case, the certificate is to be sealed with the seal of the Supreme Court.

(6)  The principal registrar of the Supreme Court must send the certificate to the Director-General of the Attorney General’s Department or, if the letter of request or any relevant convention so requires, to the appropriate consul or other authority.

rules 11.15–11.17: Ins 2006 (391), Sch 1 [5]. Am 2007 (501), Sch 1 [2].

Part 11A Service under the Hague Convention

Division 1 Preliminary

Note 1—

This Part forms part of a scheme to implement Australia’s obligations under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the Convention, the Attorney-General’s Department of the Commonwealth is designated as the Central Authority (under Article 2 of the Convention) and certain courts and government departments are, for certain purposes, designated as “other” or “additional” authorities (under Article 18 of the Convention).

Note 2—

This Part provides (in Division 2) for service in overseas Convention countries of local judicial documents (documents that relate to proceedings in the Court) and (in Division 3) for default judgment in proceedings in the Court after service overseas of such a document. Division 4, on the other hand, deals with service by the Court or arranged by the Court in its role as an other or additional authority, of judicial documents emanating from overseas Convention countries.

Note 3—

The Attorney-General’s Department of the Commonwealth maintains a copy of the Convention, a list of all Convention countries, details of declarations and objections made under the Convention by each of those countries and the names and addresses of the Central and other authorities of each of those countries. A copy of the Convention can be found at http://www.hcch.net.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.1 Definitions

In this Part:

additional authority, for a Convention country, means an authority that is:

(a)  for the time being designated by that country, under Article 18 of the Hague Convention, to be an authority (other than the Central Authority) for that country, and

(b)  competent to receive requests for service abroad emanating from Australia.

applicant, for a request for service abroad or a request for service in this jurisdiction, means the person on whose behalf service is requested.

Note—

The term applicant may have a different meaning in other Parts of these rules.

Central Authority, for a Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Convention, to be the Central Authority for that country.

certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Convention.

certifying authority, for a Convention country, means the Central Authority for the country or some other authority that is for the time being designated by the country, under Article 6 of the Hague Convention, to complete certificates of service in the form annexed to the Hague Convention.

civil proceedings means any judicial proceedings in relation to civil or commercial matters.

Convention country means a country, other than Australia, that is a party to the Hague Convention.

defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served.

foreign judicial document means a judicial document that originates in a Convention country and that relates to civil proceedings in a court of that country.

forwarding authority:

(a)  for a request for service of a foreign judicial document in this jurisdiction—the authority or judicial officer of the Convention country in which the document originates that forwards the request (being an authority or judicial officer that is competent under the law of that country to forward a request for service under Article 3 of the Hague Convention), or

(b)  for a request for service of a local judicial document in a Convention country—the Registrar.

Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.

initiating process means any document by which proceedings (including proceedings on any cross-claim or third party notice) are commenced.

local judicial document means a judicial document that relates to civil proceedings in the Court.

Registrar means the principal registrar of the Court, and includes any other person who, by delegation or otherwise, is authorised to exercise the functions of that office.

request for service abroad means a request for service in a Convention country of a local judicial document mentioned in rule 11A.4 (1).

request for service in this jurisdiction means a request for service in this jurisdiction of a foreign judicial document mentioned in rule 11A.13 (1).

the Court means the Supreme Court.

this jurisdiction means New South Wales.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.2 Provisions of this Part to prevail

The provisions of this Part prevail to the extent of any inconsistency between those provisions and any other provisions of these rules.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

Division 2 Service abroad of local judicial documents

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.3 Application of Division

(1)  Subject to subrule (2), this Division applies to service in a Convention country of a local judicial document.

(2)  This Division does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Convention.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.4 Application for request for service abroad

(1)  A person may apply to the Registrar, in the Registrar’s capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document.

(2)  The application must be accompanied by 3 copies of each of the following documents:

(a)  a draft request for service abroad, which must be in the approved form,

(b)  the document to be served,

(c)  a summary of the document to be served, which must be in the approved form,

(d)  if, under Article 5 of the Hague Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, the official language or one of the official languages of that country, a translation into that language of both the document to be served and the summary of the document to be served.

(3)  The application must contain a written undertaking to the Court, signed by the legal practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no legal practitioner on the record for the applicant in those proceedings, by the applicant:

(a)  to be personally liable for all costs that are incurred:

(i)  by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Convention country in which the documents are to be served, or

(ii)  by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served, and

(b)  to pay the amount of those costs to the Registrar within 28 days after receipt from the Registrar of a notice specifying the amount of those costs under rule 11A.6 (3), and

(c)  to give such security for those costs as the Registrar may require.

(4)  The draft request for service abroad:

(a)  must be completed (except for signature) by the applicant, and

(b)  must state whether (if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected) the applicant wants service to be attempted after the expiry of that time, and

(c)  must be addressed to the Central Authority, or to an additional authority, for the Convention country in which the person is to be served, and

(d)  may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority.

(5)  Any translation required under subrule (2) (d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating:

(a)  that the translation is an accurate translation of the documents to be served, and

(b)  the translator’s full name and address and his or her qualifications for making the translation.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.5 How application to be dealt with

(1)  If satisfied that the application and its accompanying documents comply with rule 11A.4, the Registrar:

(a)  must sign the request for service abroad, and

(b)  must forward 2 copies of the relevant documents:

(i)  if the applicant has asked for the request to be forwarded to a nominated additional authority for the Convention country in which service of the document is to be effected—to the nominated additional authority, or

(ii)  in any other case—to the Central Authority for the Convention country in which service of the document is to be effected.

(2)  The relevant documents mentioned in subrule (1) (b) are the following:

(a)  the request for service abroad (duly signed),

(b)  the document to be served,

(c)  the summary of the document to be served,

(d)  if required under rule 11A.4 (2) (d), a translation into the relevant language of each of the documents mentioned in paragraphs (b) and (c).

(3)  If not satisfied that the application or any of its accompanying documents complies with rule 11A.4, the Registrar must inform the applicant of the respects in which the application or document fails to comply.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.6 Procedure on receipt of certificate of service

(1)  Subject to subrule (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the Registrar:

(a)  must arrange for the original certificate to be filed in the proceedings to which the document relates, and

(b)  must send a copy of the certificate to:

(i)  the legal practitioner on the record for the applicant in those proceedings, or

(ii)  if there is no legal practitioner on the record for the applicant in those proceedings—the applicant.

(2)  For the purposes of subrule (1), a certificate of service is in due form if:

(a)  it is in the approved form, and

(b)  it has been completed by a certifying authority for the Convention country in which service was requested, and

(c)  if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority, it has been so countersigned.

(3)  On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in subrule (1), the Registrar must send to the legal practitioner or applicant who gave the undertaking mentioned in rule 11A.4 (3) a notice specifying the amount of those costs.

(4)  For the purposes of subrule (3), a statement of costs is in due form if:

(a)  it relates only to costs of a kind mentioned in rule 11A.4 (3) (a), and

(b)  it has been completed by a certifying authority for the Convention country in which service was requested.

(5)  Subrule (1) does not apply unless:

(a)  adequate security to cover the costs mentioned in subrule (3) has been given under rule 11A.4 (3) (c), or

(b)  to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to the Registrar.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.7 Payment of costs

(1)  On receipt of a notice under rule 11A.6 (3) in relation to the costs of service, the legal practitioner or applicant, as the case may be, must pay to the Registrar the amount specified in the notice as the amount of those costs.

(2)  If the legal practitioner or applicant fails to pay that amount within 28 days after receiving the notice:

(a)  except by leave of the Court, the applicant may not take any further step in the proceedings to which the local judicial document relates until those costs are paid to the Registrar, and

(b)  the Registrar may take such steps as are appropriate to enforce the undertaking for payment of those costs.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.8 Evidence of service

A certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of rule 11A.6 (2)) that certifies that service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that:

(a)  service of the document was effected by the method specified in the certificate on that date, and

(b)  if that method of service was requested by the applicant, that method is compatible with the law in force in the Convention country in which service was effected.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

Division 3 Default judgment following service abroad of initiating process

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.9 Application of Division

This Division applies to civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Convention country.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.10 Restriction on power to enter default judgment if certificate of service filed

(1)  This rule applies if:

(a)  a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 11A.6 (2)) that states that service has been duly effected, and

(b)  the defendant has not appeared or filed a notice of address for service.

(2)  In circumstances to which this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that:

(a)  the initiating process was served on the defendant:

(i)  by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory, or

(ii)  if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in that country, by that method, or

(iii)  if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily, and

(b)  the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.

(3)  In subrule (2) (b), sufficient time means:

(a)  42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected, or

(b)  such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.11 Restriction on power to enter default judgment if certificate of service not filed

(1)  This rule applies if:

(a)  a certificate of service of initiating process has not been filed in the proceedings, or

(b)  a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 11A.6 (2)) that states that service has not been effected,

and the defendant has not appeared or filed a notice of address for service.

(2)  If this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that:

(a)  the initiating process was forwarded to the Central Authority, or to an additional authority, for the Convention country in which service of the initiating process was requested, and

(b)  a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which initiating process was so forwarded, and

(c)  every reasonable effort has been made:

(i)  to obtain a certificate of service from the relevant certifying authority, or

(ii)  to effect service of the initiating process,

as the case requires.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.12 Setting aside judgment in default of appearance

(1)  This rule applies if default judgment has been entered against the defendant in proceedings to which this Division applies.

(2)  If this rule applies, the Court may set aside the judgment on the application of the defendant if it is satisfied that the defendant:

(a)  without any fault on the defendant’s part, did not have knowledge of the initiating process in sufficient time to defend the proceedings, and

(b)  has a prima facie defence to the proceedings on the merits.

(3)  An application to have a judgment set aside under this rule may be filed:

(a)  at any time within 12 months after the date on which the judgment was given, or

(b)  after the expiry of that 12-month period, within such time after the defendant acquires knowledge of the judgment as the Court considers reasonable in the circumstances.

(4)  Nothing in this rule affects any other power of the Court to set aside or vary a judgment.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

Division 4 Local service of foreign judicial documents

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.13 Application of Division

(1)  This Division applies to service in this jurisdiction of a foreign judicial document in relation to which a due form of request for service has been forwarded to the Court:

(a)  by the Attorney-General’s Department of the Commonwealth, whether in the first instance or following a referral under rule 11A.14, or

(b)  by a forwarding authority.

(2)  Subject to subrule (3), a request for service in this jurisdiction is in due form if it is in the approved form and is accompanied by the following documents:

(a)  the document to be served,

(b)  a summary of the document to be served, which must be in the approved form,

(c)  a copy of the request and of each of the documents mentioned in paragraphs (a) and (b),

(d)  if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.

(3)  Any translation required under subrule (2) (d) must bear a certificate (in English) signed by the translator stating:

(a)  that the translation is an accurate translation of the document, and

(b)  the translator’s full name and address and his or her qualifications for making the translation.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.14 Certain documents to be referred back to the Attorney-General’s Department of the Commonwealth

If, after receiving a request for service in this jurisdiction, the Registrar is of the opinion:

(a)  that the request does not comply with rule 11A.13, or

(b)  that the document to which the request relates is not a foreign judicial document, or

(c)  that compliance with the request may infringe Australia’s sovereignty or security, or

(d)  that the request seeks service of a document in some other State or Territory of the Commonwealth,

the Registrar must refer the request to the Attorney-General’s Department of the Commonwealth together with a statement of his or her opinion.

Note—

The Attorney General’s Department of the Commonwealth will deal with misdirected and non-compliant requests, make arrangements for the service of extrajudicial documents and assess and decide questions concerning Australia’s sovereignty and security.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.15 Service

(1)  Subject to rule 11A.14, on receipt of a request for service in this jurisdiction, the Court must arrange for the service of the relevant documents in accordance with the request.

(2)  The relevant documents mentioned in subrule (1) are the following:

(a)  the document to be served,

(b)  a summary of the document to be served,

(c)  a copy of the request for service in this jurisdiction,

(d)  if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.

(3)  Service of the relevant documents may be effected by any of the following methods of service:

(a)  by a method of service prescribed by the law in force in this jurisdiction:

(i)  for the service of a document of a kind corresponding to the document to be served, or

(ii)  if there is no such corresponding kind of document, for the service of initiating process in proceedings in the Court,

(b)  if the applicant has requested a particular method of service and that method is compatible with the law in force in this jurisdiction, by that method,

(c)  if the applicant has not requested a particular method of service and the person requested to be served accepts the document voluntarily, by delivery of the document to the person requested to be served.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

11A.16 Affidavit as to service

(1)  If service of a document has been effected pursuant to a request for service in this jurisdiction, the person by whom service has been effected must lodge with the Court an affidavit specifying:

(a)  the time, day of the week and date on which the document was served, and

(b)  the place where the document was served, and

(c)  the method of service, and

(d)  the person on whom the document was served, and

(e)  the way in which that person was identified.

(2)  If attempts to serve a document pursuant to a request for service in this jurisdiction have failed, the person by whom service has been attempted must lodge with the Court an affidavit specifying:

(a)  details of the attempts made to serve the document, and

(b)  the reasons that have prevented service.

(3)  When an affidavit as to service of a document has been lodged in accordance with this rule, the Registrar:

(a)  must complete a certificate of service, sealed with the seal of the Court, on the reverse side of, or attached to, the request for service in this jurisdiction, and

(b)  must forward the certificate of service, together with a statement as to the costs incurred in relation to the service or attempted service of the document, directly to the forwarding authority from which the request was received.

(4)  A certificate of service must be:

(a)  in the approved form, or

(b)  if a form of certificate of service that substantially corresponds to the approved form accompanies the request for service, in that accompanying form.

pt 11A, divs 1–4 (rules 11A.1–11A.16): Ins 2009 (326), Sch 1 [13].

Part 12 Discontinuance, withdrawal, dismissal and setting aside of originating process

Division 1 Discontinuance of claim

12.1 Discontinuance of proceedings (cf SCR Part 21, rules 2 and 5; DCR Part 18, rule 1; LCR Part 17, rule 1)

(1)  The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant:

(a)  with the consent of each other active party in the proceedings, or

(b)  with the leave of the court.

(2)  A notice of discontinuance:

(a)  must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and

(b)  except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance.

(3)  If any such consent is given on terms, those terms are to be incorporated in the notice of consent.

(4)  If any party has not been served with the originating process, the plaintiff must file an affidavit to that effect.

(5)  For the purposes of this rule, proceedings on a cross-claim are taken to be different proceedings to the proceedings on the originating process and to proceedings on any other cross-claim.

rule 12.1: Am 2005 (625), Sch 1 [11]; 2005 (717), Sch 1 [4] [5]; 2006 (716), Sch 1 [10].

12.2 (Repealed)

rule 12.2: Rep 2005 (717), Sch 1 [6].

12.3 Effect of discontinuance (cf SCR Part 21, rule 7; DCR Part 18, rule 7; LCR Part 17, rule 8)

(1)  A discontinuance of proceedings with respect to a plaintiff’s claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings.

(2)  Subrule (1) is subject to the terms of any consent to the discontinuance or of any leave to discontinue.

12.4 Stay of further proceedings to secure costs of discontinued proceedings (cf SCR Part 21, rule 8; DCR Part 18, rule 8; LCR Part 17, rule 9)

If:

(a)  as a consequence of the discontinuance of proceedings, a plaintiff is liable to pay the costs of another party in relation to those proceedings, and

(b)  before payment of the costs, the plaintiff commences further proceedings against that other party on the same or substantially the same cause of action as that on which the former proceedings were commenced,

the court may stay the further proceedings until those costs are paid and may make such consequential orders as it thinks fit.

Note—

See also section 67 of the Civil Procedure Act 2005 as to the terms on which a stay may be granted, and rule 42.19 as to costs payable in relation to discontinued proceedings.

Division 2 Withdrawal of appearance or pleading

12.5 Withdrawal of appearance (cf SCR Part 21, rule 1)

An active party may withdraw an appearance by leave of the court.

12.6 Withdrawal of matter in defence or subsequent pleading (cf SCR Part 21, rules 3 and 5; DCR Part 18, rule 2; LCR Part 17, rule 2)

(1)  A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time.

(2)  Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court.

(3)  A withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal.

(4)  If the withdrawal is by consent, the notice under subrule (3) must be accompanied by a notice from each party whose consent is required by subrule (2) to the effect that the party consents to the admission or other matter being withdrawn in accordance with the notice of withdrawal.

Division 3 Dismissal of proceedings etc for lack of progress

12.7 Dismissal of proceedings etc for want of due despatch (cf SCR Part 5, rule 12, Part 32A, rules 1 and 2; DCR Part 18, rules 3 and 9; LCR Part 17, rule 4)

(1)  If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2)  If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

Note—

See rule 42.20 as to the effect of dismissal with respect to costs.

rule 12.7: Am 2005 (395), Sch 1 [25].

12.8 Additional grounds for dismissal of proceedings by Supreme Court or Land and Environment Court (cf SCR Part 32A, rules 1 and 2)

(1)  This rule applies to proceedings in the Supreme Court or the Land and Environment Court.

(2)  The court may, of its own motion, make an order dismissing the proceedings if it appears from the court’s records that, for over 5 months, no party to the proceedings has taken any step in the proceedings.

(3)  Such an order may not be made:

(a)  if the proceedings, or any part of the proceedings, are listed for a future date, or

(b)  if there are any notices of motion or other applications in the proceedings that are yet to be determined, or

(c)  if a party satisfies the court that such an order should not be made.

(4)  Before such an order is made, notice of the proposed order is to be given to the plaintiff and to each other active party, being a notice that gives each of them a reasonable opportunity to be heard in relation to the proposal.

(5)  Such a notice is to be sent by post, addressed to the person to whom it is directed:

(a)  at the person’s address for service, or

(b)  if the person has no address for service, at the person’s last known address,

in an envelope marked with the court’s return address.

(6)  A notice, posted as referred to in subrule (5), is taken to have been received by the person to whom it was addressed even if it is returned to the court as having not been delivered to the addressee.

rule 12.8: Am 2005 (395), Sch 1 [26] [27]. Subst 2005 (625), Sch 1 [12]. Am 2007 (580), Sch 1 [3] [4].

12.9 Additional grounds for dismissal of proceedings by District Court or Local Court

(1)  This rule applies to proceedings in the District Court or the Local Court that have been commenced by statement of claim or in which a statement of claim has been filed.

(2)  The court may, of its own motion, make an order dismissing the proceedings if:

(a)  a defence or cross-claim is not filed, or

(b)  an application for default judgment is not filed, or

(c)  the proceedings are not otherwise disposed of,

within 9 months after the statement of claim is filed.

(3)  Such an order may be made without notice to the plaintiff or any other party.

(4)  Such an order may not be made if there are any notices of motion or other applications in the proceedings that are yet to be determined.

rule 12.9: Am 2007 (327), Sch 1 [1].

12.10 Stay of further proceedings to secure costs of proceedings dismissed (cf SCR Part 40, rule 8 (2); DCR Part 18, rule 8; LCR Part 17, rule 9)

If:

(a)  as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and

(b)  before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced,

the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit.

Note—

See also section 67 of the Civil Procedure Act 2005 as to the terms on which a stay may be granted, and rule 42.20 as to costs payable in relation to proceedings that are dismissed.

Division 4 Setting aside originating process

12.11 Setting aside originating process etc (cf SCR Part 11, rule 8)

(1)  In any proceedings, the court may make any of the following orders on the application of a defendant:

(a)  an order setting aside the originating process,

(b)  an order setting aside the service of the originating process on the defendant,

(c)  an order declaring that the originating process has not been duly served on the defendant,

(d)  an order discharging:

(i)  any order giving leave to serve the originating process outside New South Wales, or

(ii)  any order confirming service of the originating process outside New South Wales,

(e)  an order discharging any order extending the validity for service of the originating process,

(f)  an order protecting or releasing:

(i)  property seized, or threatened with seizure, in the proceedings, or

(ii)  property subject to an order restraining its disposal or in relation to which such an order is sought,

(g)  an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings,

(h)  an order declining to exercise jurisdiction in the proceedings,

(i)  an order granting such other relief as the court thinks appropriate.

(2)  Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings.

(3)  Notice of motion under subrule (2):

(a)  may be filed without entering an appearance, and

(b)  must bear a note stating the applicant’s address for service.

(4)  The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court.

Part 13 Summary disposal

13.1 Summary judgment (cf SCR Part 13, rule 2; DCR Part 11A, rule 2; LCR Part 10A, rule 2)

(1)  If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief:

(a)  there is evidence of the facts on which the claim or part of the claim is based, and

(b)  there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,

the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.

(2)  Without limiting subrule (1), the court may give judgment for the plaintiff for damages to be assessed.

(3)  In this rule, a reference to damages includes a reference to the value of goods.

13.2 Stay of judgment pending determination of cross-claim (cf SCR Part 13, rule 3; DCR Part 11A, rule 2A)

If the court gives judgment against a party under rule 13.1, and that party has made a cross-claim against the party obtaining the judgment, the court may stay enforcement of the judgment until determination of the cross-claim.

13.3 Continuation of proceedings following partial judgment (cf SCR Part 13, rule 6; DCR Part 11A, rule 4; LCR Part 10A, rule 4)

If, in any proceedings:

(a)  a party applies for judgment, and

(b)  the proceedings are not wholly disposed of by the judgment,

the proceedings may be continued as regards any claim or part of a claim not disposed of by the judgment.

13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)

(1)  If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a)  the proceedings are frivolous or vexatious, or

(b)  no reasonable cause of action is disclosed, or

(c)  the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

13.5 Continuation of proceedings following partial dismissal (cf SCR Part 13, rule 6; DCR Part 11A, rule 4; LCR Part 10A, rule 4)

If, in any proceedings:

(a)  a party applies for an order for dismissal of proceedings, and

(b)  the proceedings are not wholly disposed of by dismissal,

the proceedings may be continued as regards any claim or part of a claim not disposed of by dismissal.

13.6 Non-appearance by plaintiff (cf SCR Part 13, rule 5A)

(1)  If there is no attendance by or on behalf of a plaintiff at a hearing of which the plaintiff has had due notice, the court may adjourn the hearing to another date and direct that not less than 5 days before that date a notice of the adjournment be served on the plaintiff advising that the proceedings may be dismissed if there is no attendance by or on behalf of the plaintiff at the adjourned hearing.

(2)  If the plaintiff has been given notice in accordance with subrule (1) and there is no attendance by or on behalf of the plaintiff at the adjourned hearing, the court may dismiss the proceedings.

(3)  This rule does not restrict any other power of the court to dismiss proceedings.

rule 13.6: Ins 2005 (395), Sch 1 [28].

Part 14 Pleadings

Division 1 Preliminary

14.1 Application

This Part applies to proceedings commenced by statement of claim and to proceedings in which a statement of claim has been filed.

Division 2 Defence and further pleadings

14.2 Trial without further pleadings (cf SCR Part 15, rule 2)

(1)  If in the opinion of the court:

(a)  the issues between the parties can be defined without further pleadings, or

(b)  for any other reason the proceedings may properly be tried without further pleadings,

the court may order that the proceedings be so tried.

(2)  A court that makes an order under subrule (1) may direct the parties to prepare a statement of the issues involved in the proceedings or, if the parties do not agree on a statement, may settle a statement itself.

14.3 Defence (cf SCR Part 15, rule 3; DCR Part 10, rule 1; LCR Part 9, rule 1)

(1)  Subject to these rules, the time limited for a defendant to file a defence is 28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence.

(2)  If, before the defendant files a defence, a notice of motion for summary judgment under rule 13.1 is served on the defendant, but the court does not on that motion dispose of all of the claims for relief against the defendant, the court may fix a time within which the defendant must file a defence.

Note—

See rule 9.11 (2) under which a defence to a cross-claim for contribution under section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 may not be filed unless the court so directs.

14.4 Reply (cf SCR Part 15, rule 4)

(1)  In proceedings in the Supreme Court or the District Court, a plaintiff may file a reply to a defence.

(2)  In proceedings in the Local Court, a plaintiff may file a reply to a defence only by leave of the Court.

(3)  The time limited for the plaintiff to file a reply is 14 days after service of the defence on the plaintiff.

14.5 Further pleadings (cf SCR Part 15, rule 5)

(1)  Except by leave of the court, a party to proceedings may not file any pleading subsequent to a reply.

(2)  The time limited for a party to seek leave to file a pleading subsequent to a reply (the further pleading) is 14 days after service on the party of the pleading to which further pleading responds.

Division 3 Form of pleading generally

14.6 Pleadings to be divided into paragraphs (cf SCR Part 15, rule 6; DCR Part 9, rule 2)

If a pleading alleges or otherwise deals with several matters:

(a)  the pleading must be divided into paragraphs, and

(b)  each matter must, so far as convenient, be put in a separate paragraph, and

(c)  the paragraphs must be numbered consecutively.

14.7 Pleadings to contain facts, not evidence (cf SCR Part 15, rule 7; DCR Part 9, rule 3)

Subject to this Part, Part 6 and Part 15, a party’s pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved.

14.8 Pleadings to be brief (cf SCR Part 15, rule 8; DCR Part 9, rule 4)

A pleading must be as brief as the nature of the case allows.

14.9 References in pleadings to documents and spoken words (cf SCR Part 15, rule 9; DCR Part 9, rule 5)

If any documents or spoken words are referred to in a pleading:

(a)  the effect of the document or spoken words must, so far as material, be stated, and

(b)  the precise terms of the document or spoken words must not be stated, except so far as those terms are themselves material.

14.10 Certain facts need not be pleaded (cf SCR Part 15, rule 10; DCR Part 9, rule 6)

A party need not plead a fact if:

(a)  the fact is presumed by law to be true, or

(b)  the burden of disproving the fact lies on the opposite party,

except so far as may be necessary to meet a specific denial of that fact by another party’s pleading.

14.11 Conditions precedent presumed to have been met (cf SCR Part 15, rule 11; DCR Part 9, rule 7)

If it is a condition precedent necessary for a party’s case in any pleading that:

(a)  a thing has been done, or

(b)  an event has happened, or

(c)  a state of affairs exists, or has existed at some time or times, or

(d)  the party is ready and willing, or was at all material times ready and willing, to perform an obligation,

a statement to the effect that the condition has been satisfied is taken to be implied in the party’s pleading.

14.12 Pleading of facts in short form in certain money claims (cf SCR Part 15, rule 12; DCR Part 9, rule 8)

(1)  Subject to this rule, if the plaintiff claims money payable by the defendant to the plaintiff for any of the following:

(a)  goods sold and delivered by the plaintiff to the defendant,

(b)  goods bargained and sold by the plaintiff to the defendant,

(c)  work done or materials provided by the plaintiff for the defendant at the defendant’s request,

(d)  money lent by the plaintiff to the defendant,

(e)  money paid by the plaintiff for the defendant at the defendant’s request,

(f)  money had and received by the defendant for the plaintiff’s use,

(g)  interest on money due from the defendant to the plaintiff, and forborne at interest by the plaintiff at the defendant’s request,

(h)  money found to be due from the defendant to the plaintiff on accounts stated between them,

it is sufficient to plead the facts concerned in short form (that is, by using the form of words set out in the relevant paragraph above).

(2)  The defendant may file a notice requiring the plaintiff to plead the facts on which he or she relies in full (that is, in accordance with the provisions of this Part other than this rule).

(3)  Such a notice must be filed within the time limited for the filing of the defence.

(4)  If the defendant files a notice under this rule:

(a)  the plaintiff must, within 28 days after service of the notice:

(i)  file an amended statement of claim pleading the facts on which he or she relies in full, and

(ii)  include in the amended statement of claim a note to the effect that the statement has been amended in response to the notice, and

(b)  if a defence has not been filed, the time limited for the filing of defence is extended until 14 days after service on the defendant of the plaintiff’s amended statement of claim.

14.13 Pleading not to claim an amount for unliquidated damages (cf SCR Part 15, rule 12A; LCR Part 5, rule 1)

(1)  A pleading must not claim an amount for unliquidated damages.

(2)  Despite subrule (1), a pleading in proceedings in the District Court or in the Local Court may claim an amount for unliquidated damages if:

(a)  the claim is for the recovery of:

(i)  the cost of repair to a motor vehicle, or

(ii)  the value, less any salvage value, of a motor vehicle, or

(iii)  the towing of a motor vehicle,

where the repair, loss or towing is a consequence of damage alleged to have been sustained as a result of the negligence of the defendant or the defendant’s servant or agent, or

(b)  the claim is for the recovery of:

(i)  the cost of repair to property other than a motor vehicle, or

(ii)  the value, less any salvage value, of property other than a motor vehicle,

where the repair or loss is a consequence of damage alleged to have been sustained as a result of the negligence of the defendant or the defendant’s servant or agent in driving, riding or controlling a motor vehicle.

(3)  In subrule (2), a reference to a motor vehicle is a reference to a motor vehicle within the meaning of the Motor Accidents Compensation Act 1999, and includes a reference to a trailer within the meaning of that Act.

14.14 General rule as to matters to be pleaded specifically (cf SCR Part 15, rule 13; DCR Part 9, rule 9)

(1)  In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.

(2)  In a defence or subsequent pleading, a party must plead specifically any matter:

(a)  that, if not pleaded specifically, may take the opposite party by surprise, or

(b)  that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or

(c)  that raises matters of fact not arising out of the preceding pleading.

(3)  Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality.

14.15 Pleadings concerning possession of land (cf SCR Part 15, rule 15)

(1)  This rule applies to proceedings on a claim for possession of land.

(2)  The plaintiff must plead specifically the following matters:

(a)  the nature of any instrument (such as a certificate of title, conveyance, will, trust instrument, mortgage or lease) from which the plaintiff’s claim is alleged to be derived,

(b)  if any such instrument is alleged to impose an obligation on the defendant whose breach has given rise to the plaintiff’s claim (such as an obligation to pay money to the plaintiff), the existence of that obligation and the occurrence of any such breach,

(c)  if any such instrument is alleged to confer a right on the plaintiff that vests at a specified time or is contingent on the occurrence of a specified event, the existence of that right and the occurrence of any such time or event,

(d)  if the plaintiff’s right to possession arises from the defendant’s failure to pay money to the plaintiff, particulars of the date on which the failure began, the amount of money currently unpaid and the method by which that amount has been calculated,

(e)  if the plaintiff’s right to possession arises from any other act or omission by the defendant, particulars of the date on which the act or omission occurred and the nature of the act or omission,

(f)  if the plaintiff’s right to possession is not exercisable until the plaintiff has given notice to the defendant of the plaintiff’s intention to exercise that right, the date on which, and the terms in which, such notice was given.

(3)  The defendant must plead specifically every ground of defence on which he or she relies, including:

(a)  any claim for relief against forfeiture, and

(b)  any claim for rectification, and

(c)  any claim for relief under the Contracts Review Act 1980,

and it is not sufficient for a defendant to merely state that he or she is in possession of the land (whether personally or by a tenant) and relies on that possession.

14.16 Defendant’s pleading of contributory negligence (cf SCR Part 15, rule 14; DCR Part 9, rule 10)

A defendant who relies on contributory negligence must plead specifically the contributory negligence.

14.17 New matter may be raised in pleading (cf SCR Part 15, rule 16; DCR Part 9, rule 11)

A party may plead any matter even if the matter has arisen after the commencement of the proceedings.

14.18 Pleadings to be consistent as to allegations of fact (cf SCR Part 15, rule 17; DCR Part 9, rule 12)

(1)  A party must not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with any of his or her previous pleadings.

(2)  Subrule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative.

14.19 Pleadings may raise points of law (cf SCR Part 15, rule 18; DCR Part 9, rule 13)

A pleading may raise any point of law.

14.20 Pleading the general issue (cf SCR Part 15, rule 27)

A pleading may not plead the general issue.

14.21 Pleadings concerning claims under Property (Relationships) Act 1984

A pleading with respect to a claim for relief under section 20 (1) of the Property (Relationships) Act 1984 must plead specifically any contribution referred to in that subsection on which the plaintiff relies.

Division 4 Verification of pleadings

14.22 Pleadings in proceedings for defamation, malicious prosecution, false imprisonment, death and personal injury (cf SCR Part 15, rule 23 (16) and (17))

(1)  This Division does not apply to pleadings in proceedings for the recovery of damages for:

(a)  defamation, or

(b)  malicious prosecution, or

(c)  false imprisonment, or

(d)  trespass to the person, or

(e)  death, or

(f)  personal injury.

(2)  Despite subrule (1), the court may order that this Division is to apply to any or all pleadings in any such proceedings (including pleadings filed before the order is made) with such variations (if any) as the court may direct.

14.23 Verification of certain pleadings (cf SCR Part 15, rule 23 (1)–(7); DCR Part 10, rule 2 (1)–(6))

(1)  This rule applies to proceedings in the Supreme Court and the District Court.

(2)  A party’s pleading (including any amendment of the pleading) must be verified by affidavit.

Note—

See rule 35.3 as to who may make such an affidavit.

(3)  The affidavit verifying a pleading must state:

(a)  as to any allegations of fact in the pleading, that the deponent believes that the allegations are true, and

(b)  as to any allegations of fact that the pleading denies, that the deponent believes that the allegations are untrue, and

(c)  as to any allegations of fact that the pleading does not admit, that after reasonable inquiry the deponent does not know whether or not the allegations are true.

(4)  If the deponent is unable to make an affidavit that complies with subrule (3) in relation to all parts of a pleading, the affidavit may comply with so much of that subrule as can be complied with and state why the affidavit does not comply with the remainder of that subrule.

(5)  Subject to any order of the court, an affidavit made in accordance with subrule (4) is taken to comply with subrule (3).

(6)  Unless the court otherwise orders, the affidavit verifying a pleading must be subscribed to the pleading.

rule 14.23: Am 2006 (716), Sch 1 [11].

14.24 Court may order pleadings to be further verified (cf SCR Part 15, rule 23 (8)–(14); DCR Part 10, rule 2 (7)–(10))

(1)  Within 14 days after service of an affidavit under rule 14.23 in relation to a pleading, a party may apply to the court for a direction that the party pleading verify or further verify the pleading and for such other directions as may be appropriate.

(2)  If a party applies to the court under subrule (1), the court may direct the party pleading to file such further affidavit (if any), by such deponent and as to such facts as the court may determine.

(3)  The court may, by order, grant leave to a party to file, instead of an affidavit complying with rule 14.23 (3), an affidavit by such deponent and as to such facts as the court may determine.

Division 5 General

14.25 Defence of tender (cf SCR Part 15, rule 24; DCR Part 10, rule 1A; LCR Part 9, rule 1)

(1)  If, in proceedings on a liquidated claim, a defence of tender before commencement of the proceedings is pleaded, the tender is not available as a defence unless and until the amount has been paid into court.

(2)  In the case of a tender to which section 224 of the Customs Act 1901 of the Commonwealth applies:

(a)  subrule (1) does not apply to a defence that pleads the tender, and

(b)  the amount tendered may be paid into court when the defence is filed.

(3)  On paying the money into court, the defendant must file notice of the payment into court and serve the notice on each other party to the proceedings.

(4)  The plaintiff may accept the money by filing a notice of acceptance.

(5)  If the plaintiff accepts the money, the proceedings are to be stayed in relation to the defence of tender.

(6)  Whether or not accepted, the money must not be paid out except by order of the court.

14.26 Admission and traverse from pleadings (cf SCR Part 15, rule 20, Part 63, rule 9; DCR Part 9, rule 14, Part 45, rule 9)

(1)  An allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless:

(a)  in the pleading in response, the opposite party traverses the allegation, or

(b)  a joinder of issues under rule 14.27 operates as a denial of the allegation.

(2)  A traverse may be made by denial or by a statement of non-admission, either expressly or by necessary implication, and either generally or as to any particular allegation.

(3)  Despite subrule (1), a pleading in response to a pleading that alleges the suffering of damage or an amount of damages is taken to traverse the allegation unless it specifically admits the allegation.

(4)  Subrule (1) does not apply to an opposite party who is a person under a legal incapacity.

rule 14.26: Am 2006 (716), Sch 1 [12].

14.27 Joinder of issue (cf SCR Part 15, rule 21; DCR Part 9, rule 15)

(1)  A pleading may expressly join issue on a previous pleading.

(2)  If there is no reply by a plaintiff to a defence, there is an implied joinder of issue on that defence.

(3)  If there is no answer by the opposite party to a reply or subsequent pleading, there is an implied joinder of issue on the reply or subsequent pleading.

(4)  There can be no joinder of issue, express or implied, on a statement of claim.

(5)  An implied joinder of issue on a pleading operates as a denial of every allegation of fact made in the pleading.

(6)  An express joinder of issue on a pleading operates as a denial of every allegation of fact made in the pleading other than an allegation that is expressly admitted.

14.28 Circumstances in which court may strike out pleadings (cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3)

(1)  The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)  has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)  is otherwise an abuse of the process of the court.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

14.29 Defence of extinction of right or title (cf SCR Part 5, rule 5B)

For the purposes of section 68A of the Limitation Act 1969, a claim by the defendant that a right or title has been extinguished under Division 1 of Part 4 of that Act may be made by affidavit or by notice.

Division 6 Pleadings concerning defamation

Note—

The Defamation Act 2005 applies to the publication of defamatory matter after the commencement of that Act. The Act commenced on 1 January 2006. However, the Defamation Act 1974 (as in force before its repeal by the Defamation Act 2005) continues to apply to the following causes of action by virtue of clause 2 (Application of this Act) of Schedule 4 (Savings, transitional and other provisions) to the Defamation Act 2005:

(a)  a cause of action for defamation that accrued before 1 January 2006,

(b)  a cause of action for defamation that accrued after the commencement of the Defamation Act 2005, but only if:

(i)  the action is raised in proceedings that include other causes of action that accrued before 1 January 2006, and

(ii)  the action accrued no later than 12 months after the earliest pre-1 January 2006 action accrued, and

(iii)  each action in the proceedings arose out of the publication of the same, or substantially the same, matter on different occasions.

Clause 2 of Schedule 4 to the Defamation Act 2005 also ensures that any other law (both legislative and common law) that would have applied to such causes of action but for the enactment of the new Act will continue to apply to such causes of action.

pt 14, div 6: Ins 2005 (807), Sch 1 [3].

14.30 Allegations in statements of claim generally (cf SCR Part 67, rule 11; DCR Part 49, rule 10)

(1)  A statement of claim seeking relief in relation to the publication of defamatory matter must not include any allegation that the matter or its publication was false, malicious or unlawful.

(2)  Any such statement of claim must:

(a)  subject to subrule (3), specify each imputation on which the plaintiff relies, and

(b)  allege that the imputation was defamatory of the plaintiff.

(3)  A plaintiff in proceedings for defamation must not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance.

rules 14.30–14.37: Ins 2005 (807), Sch 1 [3].

14.31 Defamation defences generally (cf SCR Part 67, rules 13 and 19 (1); DCR Part 49, rule 12)

(1)  Subject to rules 14.32–14.40, a defendant in proceedings for defamation must plead any defamation defence specifically.

(2)  If the plaintiff in defamation proceedings complains of two or more imputations, the pleading of any of the following defences must specify to what imputation or imputations the defence is pleaded:

(a)  a defence under section 15 (2) or 16 (2) of the Defamation Act 1974,

(b)  a defence under section 25 or 26 of the Defamation Act 2005,

(c)  the defence of justification at common law.

(3)  If a plaintiff intends to meet any defamation defence:

(a)  by alleging that the defendant was actuated by express malice in the publication of the matter complained of, or

(b)  by relying on any matter which, under the Defamation Act 1974 or the Defamation Act 2005, defeats the defence,

then the plaintiff must plead that allegation or matter of defeasance by way of reply.

rules 14.30–14.37: Ins 2005 (807), Sch 1 [3].

14.32 Defence of justification generally (cf SCR Part 67, rule 14; DCR Part 49, rule 13)

(1) Defence under Defamation Act 1974 Subject to rule 14.31 (2), a defence under section 15 (2) of the Defamation Act 1974 is sufficiently pleaded if it alleges:

(a)  that the imputation in question was a matter of substantial truth, and

(b)  either:

(i)  that the imputation in question related to a matter of public interest, or

(ii)  that the imputation in question was published under qualified privilege.

Note—

The defence of justification under section 15 (2) of the Defamation Act 1974 applies to the exclusion of the common law defence of justification. See section 15 (1) of the Defamation Act 1974.

(2) Defences under Defamation Act 2005 and at common law Subject to rule 14.31 (2), a defence of justification under section 25 of the Defamation Act 2005 or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true.

Note—

The defence of justification under section 25 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of justification. See section 24 (1) of the Defamation Act 2005.

rules 14.30–14.37: Ins 2005 (807), Sch 1 [3].

14.33 Defence of contextual truth (cf SCR Part 67, rule 15; DCR Part 49, rule 14)

(1) Defence under Defamation Act 1974 Subject to rule 14.31 (2), a defence under section 16 of the Defamation Act 1974 is sufficiently pleaded if it:

(a)  alleges either:

(i)  that the imputation in question related to a matter of public interest, or

(ii)  that the imputation in question was published under qualified privilege, and

(b)  specifies one or more imputations on which the defendant relies as being contextual to the imputation in question, and

(c)  as to the contextual imputations on which the defendant relies:

(i)  alleges either that they related to a matter of public interest or that they were published under qualified privilege, and

(ii)  alleges that they were matters of substantial truth, and

(d)  alleges that, by reason that the contextual imputations on which the defendant relies are matters of substantial truth, the imputation in question did not further injure the reputation of the plaintiff.

(2) Defence under Defamation Act 2005 Subject to rule 14.31 (2), a defence under section 26 of the Defamation Act 2005 is sufficiently pleaded if it:

(a)  specifies one or more imputations on which the defendant relies as being contextual to the imputation in question, and

(b)  alleges each contextual imputation on which the defendant relies was substantially true, and

(c)  alleges that the imputation in question did not further harm the reputation of the plaintiff because of the contextual imputations on which the defendant relies.

rules 14.30–14.37: Ins 2005 (807), Sch 1 [3].

14.34 Defence of absolute privilege

(1)  This rule applies:

(a)  to a defence of absolute privilege under Division 3 of Part 3 of the Defamation Act 1974 or under section 27 of the Defamation Act 2005, and

(b)  to the defence of absolute privilege at common law.

(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under absolute privilege.

rules 14.30–14.37: Ins 2005 (807), Sch 1 [3].

14.35 Defences for publication of public and official documents

(1) Defence under section 25 of Defamation Act 1974 A defence under section 25 of the Defamation Act 1974 is sufficiently pleaded if it alleges that the matter complained of was:

(a)  a document or record specified as a document or record to which that section applies or a copy of such a document or record, or

(b)  a fair summary of, or a fair extract from, such a document or record.

(2) Defence under section 27 of Defamation Act 1974 A defence under section 27 of the Defamation Act 1974 is sufficiently pleaded if it alleges that the matter complained of was a notice published in accordance with the direction of a court.

(3) Defence under section 28 of Defamation Act 2005 A defence under section 28 of the Defamation Act 2005 is sufficiently pleaded if it alleges that the matter complained of was contained in:

(a)  a public document or a fair copy of a public document, or

(b)  a fair summary of, or a fair extract from, a public document.

rules 14.30–14.37: Ins 2005 (807), Sch 1 [3].

14.36 Defences of fair report of proceedings of public concern

(1) Defences under Defamation Act 1974 A defence under section 24 of the Defamation Act 1974 is sufficiently pleaded if it alleges that:

(a)  the matter complained of was a fair protected report, or

(b)  the matter complained of was a later publication by the defendant of:

(i)  a protected report or a copy of the protected report, or a fair extract or fair abstract from, or fair summary of, a protected report that was previously published by another person, or

(ii)  material purporting to be a protected report or a copy of a protected report, or of a fair extract or fair abstract from, or fair summary of, material purporting to be a protected report that was previously published by another person,

and the defendant did not have knowledge that should have made the defendant aware that the protected report is not fair or the material purporting to be a protected report was not a protected report or is not fair.

(2) Defences under Defamation Act 2005 A defence under section 29 of the Defamation Act 2005 is sufficiently pleaded if it alleges that:

(a)  the matter complained of was, or was contained in, a fair report of any proceedings of public concern, or

(b)  the matter complained of:

(i)  was, or was contained in, an earlier published report of proceedings of public concern, and

(ii)  was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report,

and the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

rules 14.30–14.37: Ins 2005 (807), Sch 1 [3].

14.37 Defence of qualified privilege (cf SCR Part 67, rule 16; DCR Part 49, rule 15)

(1)  This rule applies:

(a)  to a defence under Division 4 of Part 3 of the Defamation Act 1974 or section 30 of the Defamation Act 2005, and

(b)  to any other defence of qualified privilege other than any of the following:

(i)  a defence under Division 5, 6 or 7 of Part 3 of the Defamation Act 1974,

(ii)  a defence under section 28, 29 or 31 of the Defamation Act 2005,

(iii)  the defence of fair comment at common law.

(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under qualified privilege.

rules 14.30–14.37: Ins 2005 (807), Sch 1 [3].

14.38 Defences of comment or honest opinion (cf SCR Part 67, rule 17 (1) and (2); DCR Part 49, rule 16 (1) and (2))

(1) Defences under Defamation Act 1974 A defence under Division 7 of Part 3 of the Defamation Act 1974 is sufficiently pleaded if, as to the matter it alleges was comment, it:

(a)  either:

(i)  alleges that the comment was comment based on proper material for comment and on no other material, or

(ii)  alleges that the comment was comment based to some extent on proper material for comment and represented an opinion that might reasonably be based on that material to the extent to which it was proper material for comment, and

(b)  alleges that the comment related to a matter of public interest, and

(c)  either:

(i)  alleges that the comment was the comment of the defendant, or

(ii)  alleges that the comment was the comment of a servant or agent of the defendant, or

(iii)  alleges that the comment was not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.

Note—

A defence of fair comment under Division 7 of Part 3 of the Defamation Act 1974 applies to the exclusion of the common law defence of fair comment. See section 29 of the Defamation Act 1974.

(2) Defences under Defamation Act 2005 A defence under section 31 of the Defamation Act 2005 is sufficiently pleaded if, as to the matter it alleges was opinion, it:

(a)  either:

(i)  alleges that the opinion was based on proper material and on no other material, or

(ii)  alleges that the opinion was an opinion based to some extent on proper material and represented an opinion that might reasonably be based on that material to the extent to which it was proper material, and

(b)  alleges that the opinion was an opinion related to a matter of public interest, and

(c)  either:

(i)  alleges that the opinion was an expression of opinion of the defendant, or

(ii)  alleges that the opinion was an expression of opinion of an employee or agent of the defendant, or

(iii)  alleges that the opinion was an expression of opinion of a person other than the defendant or an employee or agent of the defendant.

Note—

A defence of honest opinion under section 31 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of fair comment. See section 24 (1) of the Defamation Act 2005.

(3) Defence of fair comment at common law A defence of fair comment at common law is sufficiently pleaded if, as to the matter it alleges was comment, it:

(a)  alleges that the comment was comment based on true facts or material that was published under privilege, and

(b)  alleges that the comment related to a matter of public interest.

(c)    (Repealed)

Note—

See the note to subrule (2).

rule 14.38: Ins 2005 (807), Sch 1 [3]. Am 2006 (288), Sch 1 [4] [5].

14.39 Defence of innocent dissemination

A defence under section 32 of the Defamation Act 2005 is sufficiently pleaded if it alleges that:

(a)  the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor, and

(b)  the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and

(c)  the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

rules 14.39, 14.40: Ins 2005 (807), Sch 1 [3].

14.40 Defence of triviality

(1)  This rule applies to:

(a)  a defence under section 13 of the Defamation Act 1974, and

(b)  a defence under section 33 of the Defamation Act 2005.

(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm.

rules 14.39, 14.40: Ins 2005 (807), Sch 1 [3].

Part 15 Particulars

Division 1 General

15.1 Pleadings must give all necessary particulars (cf SCR Part 16, rules 1 and 1A; DCR Part 9, rule 19; LCR Part 8, rule 2)

(1)  Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.

(2)  Subrule (1) does not require a pleading to give particulars of any claim for interest up to judgment other than those required by rule 6.12 (7).

15.2 Use of “Scott Schedule” in building, technical and other cases (cf DCR Part 9, rule 19A; LCR Part 8, rule 7)

(1)  In proceedings involving a building, technical or other matter in which several items of a claim are in dispute as to liability or amount, or both, the party making the claim may, and if the court so orders must, prepare and file a “Scott Schedule” in the approved form.

(2)  A party on whom a Scott Schedule is served must complete and file the Schedule.

15.3 Allegations of behaviour in the nature of fraud (cf SCR Part 16, rule 2; DCR Part 9, rule 20)

A pleading must give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies.

15.4 Allegations as to condition of mind (cf SCR Part 16, rule 3; DCR Part 9, rule 21)

(1)  A pleading that alleges any condition of mind must give particulars of the facts on which the party pleading relies.

(2)  In subrule (1), condition of mind includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge.

15.5 Allegations of negligence and breach of statutory duty in common law claims in tort (cf SCR Part 16, rule 4; DCR Part 9, rule 22; LCR Part 8, rule 4)

(1)  The particulars to be given by a pleading that alleges negligence (whether contributory or otherwise):

(a)  must state the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission, and

(b)  if the party pleading alleges more than one negligent act or omission, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged negligent act or omission.

(2)  The particulars to be given by a pleading that alleges breach of statutory duty:

(a)  must state the facts and circumstances on which the party pleading relies as constituting the alleged breach of statutory duty, and

(b)  if the party pleading alleges more than one breach of statutory duty, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged breach of statutory duty.

15.6 Claims for out of pocket expenses (cf SCR Part 16, rule 5; DCR Part 9, rule 23; LCR Part 8, rule 5)

A party pleading who claims damages that include money that he or she has paid or is liable to pay must give particulars of that money.

15.7 Claims for exemplary damages (cf SCR Part 16, rule 5A)

The particulars to be given by a pleading that claims exemplary damages must state the facts and circumstances on which the party pleading relies to establish that claim.

15.8 Claims for aggravated damages (cf SCR Part 16, rule 5B)

The particulars to be given by a pleading that claims aggravated compensatory damages must state the facts and circumstances on which the party pleading relies to establish that claim.

15.9 Manner of giving particulars (cf SCR Part 16, rule 6; DCR Part 9, rule 25; LCR Part 8, rule 6)

The particulars to be given by a pleading must be set out in the pleading or, if that is inconvenient, must be set out in a separate document referred to in the pleading and filed with the pleading.

15.10 Order for particulars (cf SCR Part 16, rule 7; DCR Part 9, rule 26; LCR Part 8, rule 8)

(1)  The court may order a party to file:

(a)  particulars of any claim, defence or other matter stated in the party’s pleading or in any affidavit relevant to the proceedings, or

(b)  a statement of the nature of the case on which the party relies, or

(c)  if the party claims damages, particulars relating to general or other damages.

(2)  Without limiting subrule (1), if a pleading alleges that a person had knowledge or notice of some fact, matter or thing, the court may order that party to file:

(a)  if the pleading alleges knowledge, particulars of the facts on which that party relies, and

(b)  if the pleading alleges notice, particulars of the notice.

15.11 Particulars concerning claims under Property (Relationships) Act 1984

The particulars to be given by a pleading with respect to a claim for relief under section 20 (1) of the Property (Relationships) Act 1984 must include:

(a)  particulars of any payment on which the plaintiff relies as to any contribution referred to in that subsection, and

(b)  particulars of any document on which the plaintiff relies as evidence that any such payment has been made.

Division 2 Personal injury cases

15.12 Particulars required for proceedings generally (cf DCR Part 9, rule 27 (2)–(5))

(1)  This rule applies to a claim for damages in respect of personal injuries arising from any event (the accident), other than a claim that is the subject of proceedings under the Compensation to Relatives Act 1897.

(2)  On or as soon as practicable after serving the statement of claim, the plaintiff must serve on the defendant, or on the defendant’s insurer or solicitor, a statement accompanied by the following documents:

(a)  copies of all documents available to the plaintiff in support of a claim for special damage and economic loss, whether past, present or continuing, including:

(i)  hospital, medical and similar accounts, and

(ii)  letters from a workers’ compensation insurer indicating moneys paid to or for the plaintiff, and

(iii)  letters from employers, wage records, income records and group certificates, and

(iv)  reports, award rates and correspondence relied on to support any claim in respect of domestic assistance or attendant care,

(b)  copies of all hospital and medical reports available at the time of serving the statement on which the plaintiff intends to rely at the hearing.

(2A)  On or as soon as practicable after serving the statement required by subrule (2), the plaintiff must file a copy of that statement (without the accompanying documents required by this rule).

(3)  The statement must set out the following particulars:

(a)  particulars of injuries received,

(b)  particulars of continuing disabilities,

(c)  particulars of out-of-pocket expenses.

(4)  If the statement makes any claim in respect of domestic assistance or attendant care, it must also set out full particulars of the claim.

(5)  If the statement makes any claim in respect of loss of income, it must also set out the following particulars:

(a)  the name and address of each employer during the 12 months immediately before the accident, together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,

(b)  the name and address of each employer since the accident, together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,

(c)  the amount claimed in respect of loss of income to the date of the statement (by comparison between what the plaintiff has earned since the accident and what the plaintiff would have earned but for the accident) setting out, in respect of what the plaintiff would have earned but for the accident, including, where appropriate:

(i)  particulars of the earnings of comparable employees and the identity of those employees, or

(ii)  particulars of any payment that the plaintiff would have received under a relevant award or industrial agreement, together with the title of that award or industrial agreement,

(d)  particulars of any alleged loss of earning capacity and future economic loss,

(e)  if the plaintiff is self-employed or has been self-employed at any time during the 12 months immediately before the accident, such additional particulars as will achieve full disclosure of the basis of the claim for loss of income.

(6)  If the statement makes any claim in respect of loss of income, copies of the following documents must be served on all active parties:

(a)  a letter from the employer or employers (if any) of the plaintiff immediately before the accident the subject of the proceedings, providing particulars of:

(i)  the dates on which the plaintiff was absent from work due to the accident, and

(ii)  the total net remuneration lost by the plaintiff in respect of that absence, including overtime, and

(iii)  if the plaintiff returned to work for that employer, the plaintiff’s classification and duties, and any alteration in the remuneration paid to the plaintiff, after that return, and

(iv)  if that employment has been terminated, the date of and reason for the termination,

(b)  if the plaintiff was self-employed immediately before the accident, copies of any accountants’ reports or other documents on which the plaintiff intends to rely to establish his or her pre-accident income,

(c)  copies of the plaintiff’s income tax returns relating to income received during the period of 2 financial years ending immediately before the financial year that included the date of the accident, together with copies of any income tax returns lodged by the plaintiff since the date of the accident.

(7)  If any, or any part of, any document required to be served by subrule (6) cannot be served, a statement of the reasons why it cannot be served must be included in the documents served.

rule 15.12: Am 2006 (716), Sch 1 [13]; 2009 (569), Sch 1 [3].

15.13 Particulars required for proceedings under Compensation to Relatives Act 1897 (cf DCR Part 9, rule 27 (6) and (7))

(1)  This rule applies to a claim for damages in respect of personal injuries arising from any act, neglect or default (the accident) that is the subject of proceedings under the Compensation to Relatives Act 1897.

(2)  On or as soon as practicable after serving the statement of claim, the plaintiff must serve on the defendant, or on the defendant’s insurer or solicitor:

(a)  in respect of each person on whose behalf the proceedings are commenced, a statement containing the following information:

(i)  the person’s name, address, relationship to the deceased person the subject of the proceedings, marital status and any anticipated alteration to that status,

(ii)  whether the person’s dependency on the deceased person, or the person’s reliance on services provided by the deceased person, is claimed to have been whole or partial, the circumstances in which the person received support or services from the deceased person, and the quantum of that support or those services during the 12-month period immediately before the death of the deceased person, and

(b)  in respect of each person on whose behalf the proceedings are commenced, copies of the following documents:

(i)  a copy or extract of the person’s birth certificate and, if the person has been married, a copy of the person’s marriage certificate,

(ii)  copies of any bank statements, financial records or other documents on which the person intends to rely to establish the extent of the support and other benefits provided to the person by the deceased person, covering a period of not less than 12 months immediately before the date of the death of the deceased person, and

(c)  in respect of the deceased person, copies of the following documents:

(i)  a letter from the employer (if any) of the deceased person immediately before the accident, providing particulars of the deceased person’s remuneration and prospects of promotion at the date of his or her death,

(ii)  copies of the deceased person’s income tax returns relating to income received during the period of 2 financial years ending immediately before the financial year that included the date of his or her death,

(iii)  copies of all documents, including accounts and receipts, in support of any claim for the cost of a funeral or headstone or for any other expenses relating to the deceased person’s death,

(iv)  copies of documents evidencing the net value of the estate of the deceased person.

(3)  On or as soon as practicable after serving the statement required by subrule (2), the plaintiff must file a copy of that statement (without the other documents required to be served by this rule).

(4)  If any, or any part of, any document required to be served by subrule (2) cannot be served, a statement of the reasons why it cannot be served must be included in the documents served.

rule 15.13: Am 2006 (716), Sch 1 [14]; 2009 (569), Sch 1 [4].

15.14 Statements, documents and reports to be complete (cf DCR Part 9, rule 27 (8)–(10))

(1)  The statement and documents required by rule 15.12 or 15.13 to be served:

(a)  must be as final and complete as to the plaintiff’s case as they can, with the exercise of reasonable diligence, be made, and

(b)  must contain such information as the plaintiff can then provide as to any medical examination of the plaintiff to be conducted after the date of service.

(2)  As soon as practicable after becoming aware that any information contained in a statement or document that has been served as required by rule 15.12 or 15.13 is no longer accurate and complete as regards the plaintiff’s claim, the plaintiff must give to all active parties such advice as is necessary to make that information accurate and complete.

(3)  If the plaintiff gives advice as referred to in subrule (2), the court may direct the plaintiff to file an amended statement of particulars.

(4)  Unless the court orders otherwise, the plaintiff must file a copy of the final statement of particulars at least 42 days prior to the date fixed for hearing or arbitration of the proceedings.

(5)  Subject to subrules (3) and (4), an amended statement of particulars may not be filed except by leave of the court.

15.15 (Repealed)

rule 15.15: Rep 2006 (716), Sch 1 [15].

15.16 Effect of failure to comply with Division (cf DCR Part 9, rule 27 (11))

If, after conducting a review or status conference or otherwise, the court is of the opinion that the plaintiff has not sufficiently complied with the requirements of this Division, the court may dismiss the proceedings or make such other order as it thinks fit.

15.17 Division not to apply in certain circumstances (cf DCR Part 9, rule 27 (1))

This Division does not apply to a claim that is accompanied by:

(a)  a notice of motion seeking a separate trial on the question of liability, or

(b)  a notice of motion seeking an order to defer the application of this Division to the proceedings.

Division 3 Interim payments

15.18 Interim payments (cf SCR Part 16, rule 8)

If an application for an order under section 82 of the Civil Procedure Act 2005 is made in any proceedings, the plaintiff must serve on the defendant against whom the order is sought, no later than the date of filing of notice of the motion:

(a)  if the application relates to a claim for damages in respect of personal injuries, the statement and documents referred to in rule 15.12, or

(b)  if the application relates to a claim for damages under the Compensation to Relatives Act 1897 that includes a claim for loss of maintenance and support, the statement and documents referred to in rule 15.13.

Division 4 Defamation

Note—

The Defamation Act 2005 applies to the publication of defamatory matter after the commencement of that Act. The Act commenced on 1 January 2006. However, the Defamation Act 1974 (as in force before its repeal by the Defamation Act 2005) continues to apply to the following causes of action by virtue of clause 2 (Application of this Act) of Schedule 4 (Savings, transitional and other provisions) to the Defamation Act 2005:

(a)  a cause of action for defamation that accrued before 1 January 2006,

(b)  a cause of action for defamation that accrued after the commencement of the Defamation Act 2005, but only if:

(i)  the action is raised in proceedings that include other causes of action that accrued before 1 January 2006, and

(ii)  the action accrued no later than 12 months after the earliest pre-1 January 2006 action accrued, and

(iii)  each action in the proceedings arose out of the publication of the same, or substantially the same, matter on different occasions.

Clause 2 of Schedule 4 to the Defamation Act 2005 also ensures that any other law (both legislative and common law) that would have applied to such causes of action but for the enactment of the new Act will continue to apply to such causes of action.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.19 Particulars in relation to statements of claim for defamation (cf SCR Part 67, rule 12; DCR Part 49, rule 11)

(1)  The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following:

(a)  particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified,

(b)  particulars of any publication, circulation or distribution of the matter complained of or copy of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified,

(c)  if the plaintiff alleges that the matter complained of had a defamatory meaning other than its ordinary meaning—particulars of the facts and matters on which the plaintiff relies to establish that defamatory meaning, including:

(i)  full and complete particulars of the facts and matters relied on to establish a true innuendo, and

(ii)  by reference to name or class, the identity of those to whom those facts and matters were known,

(d)  if the plaintiff is not named in the matter complained of—particulars of identification of the plaintiff together with the identity, by reference to names and addresses or class of persons, of those to whom any such particulars were known, and

(e)  particulars of the part or parts of the matter complained of relied on by the plaintiff in support of each pleaded imputation.

(2)  Such of the following as is applicable must be filed and served with a statement of claim seeking relief in relation to the publication of defamatory matter (or any amended statement of claim) and be referred to in the statement of claim or amended statement of claim:

(a)  a legible photocopy of the original publication or, in the case of an internet, e-mail or other computer displayed publication, a printed copy,

(b)  a typescript, with numbered lines, of:

(i)  if the original publication is in English—the text of the original publication, or

(ii)  otherwise—a translation of the text of the original publication.

(3)  Subrule (2) (b) must be complied with in respect of radio and television publications.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.20 Particulars in relation to statements of claim by corporations

The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter about a corporation must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that the corporation is not precluded from asserting a cause of action for defamation.

Note—

Subject to limited exceptions, corporations are precluded from bringing defamation proceedings:

(a)  in relation to causes of action to which the Defamation Act 1974 applies, by section 8A of that Act, and

(b)  in relation to causes of action to which the Defamation Act 2005 applies, by section 9 of that Act.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.21 Particulars of defamation defences generally (cf SCR Part 67, rule 18; DCR Part 49, rule 17)

(1)  The particulars of a defamation defence required by rule 15.1 must, unless the court orders otherwise, include particulars of the facts, matters and circumstances on which the defendant relies to establish:

(a)  that any imputation, notice, report, comment or other material was or related to a matter of public interest,

(b)  that any imputation was published under qualified privilege,

(c)  that any imputation or contextual imputation was true or was a matter of substantial truth,

(d)  that any material being proper material for comment was a matter of substantial truth.

(2)  If a defendant in proceedings for defamation intends to make a case in mitigation of damages by reference to:

(a)  the circumstances in which the publication complained of was made, or

(b)  the reputation of the plaintiff, or

(c)  any apology for, or explanation or correction or retraction of, any imputation complained of, or

(d)  any recovery, proceedings, receipt or agreement to which section 48 of the Defamation Act 1974 or section 38 (1) (c), (d) or (e) of the Defamation Act 2005 applies,

the defendant must give particulars of the facts, matters and circumstances on which the defendant relies to make that case.

(3)  If a defendant in proceedings for defamation intends to show, in mitigation of damages, that any imputation complained of was true or was a matter of substantial truth, the defendant must give particulars identifying the imputation, stating that intention, and of the facts, matters and circumstances the defendant relies on to establish that the imputation was true or was a matter of substantial truth.

(4)  The particulars required by subrules (2) and (3) must be set out in the defence, or, if that is inconvenient, may be set out in a separate document, referred to in the defence and that document must be filed and served with the defence.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.22 Particulars in relation to defence of justification

(1) Defence under section 15 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 15 (2) of the Defamation Act 1974 must (unless the court orders otherwise) include particulars of the facts, matters and circumstances on which the defendant relies to establish:

(a)  that the imputation in question was a matter of substantial truth, and

(b)  either:

(i)  that the imputation in question related to a matter of public interest, or

(ii)  that the imputation in question was published under qualified privilege.

Note—

The defence of justification under section 15 (2) of the Defamation Act 1974 applies to the exclusion of the common law defence of justification. See section 15 (1) of the Defamation Act 1974.

(2) Defences under section 25 of Defamation Act 2005 and at common law Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of justification under section 25 of the Defamation Act 2005 or at common law must (unless the court orders otherwise) include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation in question was substantially true.

Note—

The defence of justification under section 25 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of justification. See section 24 (1) of the Defamation Act 2005.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.23 Particulars in relation to the defence of contextual truth

(1) Defence under section 16 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 16 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish:

(a)  that the imputation in question related to a matter of public interest or was published under qualified privilege, and

(b)  that the contextual imputations on which the defendant relies:

(i)  related to a matter of public interest or that they were published under qualified privilege, and

(ii)  are matters of substantial truth.

(2) Defence under section 26 of Defamation Act 2005 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of contextual truth under section 26 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the contextual imputations on which the defendant relies are substantially true.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.24 Particulars in relation to defence of absolute privilege

(1)  This rule applies:

(a)  to a defence of absolute privilege under Division 3 of Part 3 of the Defamation Act 1974 or under section 27 of the Defamation Act 2005, and

(b)  to the defence of absolute privilege at common law.

(2)  Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of absolute privilege to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation or matter complained of was published under absolute privilege.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.25 Particulars in relation to defences for publication of public and official documents

(1) Defence under section 25 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 25 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was:

(a)  a document or record specified as a document or record to which that section applies or a copy of such a document or record, or

(b)  a fair extract or fair abstract from, or a fair summary of, such a document or record.

(2) Defence under section 27 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 27 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was a notice published in accordance with the direction of a court.

(3) Defence under section 28 of Defamation Act 2005 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 28 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was contained in:

(a)  a public document or a fair copy of a public document, or

(b)  a fair summary of, or a fair extract from, a public document.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.26 Particulars in relation to defences of fair report of proceedings of public concern

(1) Defences under section 24 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 24 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that:

(a)  the matter complained of was a fair protected report, or

(b)  the matter complained of was a later publication by the defendant of:

(i)  a protected report or a copy of the protected report, or a fair extract or fair abstract from, or fair summary of, a protected report that was previously published by another person, or

(ii)  material purporting to be a protected report or a copy of the protected report, or of a fair extract or fair abstract from, or fair summary of, material purporting to be a protected report that was previously published by another person,

and the defendant did not have knowledge that should have made the defendant aware that the protected report is not fair or the material purporting to be a protected report was not a protected report or is not fair.

(2) Defences under section 29 of Defamation Act 2005 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 29 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that:

(a)  the matter complained of was, or was contained in, a fair report of any proceedings of public concern, or

(b)  the matter complained of:

(i)  was, or was contained in, an earlier published report of proceedings of public concern, and

(ii)  was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report,

and the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.27 Particulars in relation to defence of qualified privilege

(1)  This rule applies:

(a)  to a defence under Division 4 of Part 3 of the Defamation Act 1974 or section 30 of the Defamation Act 2005, and

(b)  to any other defence of qualified privilege other than any of the following:

(i)  a defence under Division 5, 6 or 7 of Part 3 of the Defamation Act 1974,

(ii)  a defence under section 28, 29 or 31 of the Defamation Act 2005,

(iii)  the defence of fair comment at common law.

(2)  Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of qualified privilege to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation or matter complained of was published under qualified privilege.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.28 Particulars in relation to defences of comment and honest opinion (cf SCR Part 67, rule 17 (3)–(6); DCR Part 49, rule 16 (3)–(6))

(1) Defences under Division 7 of Part 3 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of comment under Division 7 of Part 3 of the Defamation Act 1974 must include:

(a)  particulars identifying the material on which it is alleged that the matter alleged to be comment was comment and identifying to what extent that material is alleged to be proper material for comment, and

(b)  as to material alleged to be proper material for comment, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation.

(c)  if the defendant relies on a defence under section 33 of that Act—particulars identifying the servant or agent of the defendant whose comment it is alleged to be.

Note—

A defence of fair comment under Division 7 of Part 3 of the Defamation Act 1974 applies to the exclusion of the common law defence of fair comment. See section 29 of the Defamation Act 1974.

(2) Defences under section 31 of Defamation Act 2005 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of honest opinion under section 31 of the Defamation Act 2005 must include:

(a)  particulars identifying the material on which it is alleged that the matter alleged to be an opinion was an opinion and identifying to what extent that material is alleged to be proper material, and

(b)  as to material alleged to be proper material, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation, and

(c)  if the defendant relies on a defence under section 31 (2) of that Act—particulars identifying the employee or agent of the defendant whose opinion it is alleged to be, and

(d)  if the defendant relies on a defence under section 31 (3) of that Act—particulars identifying the commentator whose opinion it is alleged to be.

Note—

A defence of honest opinion under section 31 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of fair comment. See section 24 (1) of the Defamation Act 2005.

(3) Defence of fair comment at common law Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of fair comment at common law must include:

(a)  particulars identifying the material on which it is alleged that the matter alleged to be comment was comment and identifying to what extent that material is alleged to be based on true facts or material that was published under privilege, and

(b)  as to material alleged to be true facts or material that was published under privilege, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation.

Note—

See note to subrule (2).

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.29 Particulars in relation to defence of innocent dissemination

Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 32 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that:

(a)  the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor, and

(b)  the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and

(c)  the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.30 Particulars in relation to defence of triviality

(1)  This rule applies to:

(a)  a defence under section 13 of the Defamation Act 1974, and

(b)  a defence under section 33 of the Defamation Act 2005.

(2)  Without limiting rule 15.21, the particulars required by rule 15.1 for a defence to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.31 Particulars concerning grounds that defeat defamation defences (cf SCR Part 67, rule 19 (1); DCR Part 49, rule 18)

(1)  If a plaintiff intends to meet any defamation defence:

(a)  by alleging that the defendant was actuated by express malice in the publication of the matter complained of, or

(b)  by relying on any matter which, under the Defamation Act 1974 or the Defamation Act 2005, defeats the defence,

then the particulars required by rule 15.1 in relation to the reply must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that allegation or matter of defeasance.

(2)  The particulars required by subrule (1) must be set out in the reply, or, if that is inconvenient, may be set out in a separate document, referred to in the reply, and that document must be filed and served with the reply.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

15.32 Particulars concerning damages (cf SCR Part 67, rule 19 (2) and (3); DCR Part 49, rule 18)

The plaintiff must give:

(a)  particulars of facts, matters and circumstances on which the plaintiff will rely in support of a claim for aggravated damages, and

(b)  particulars of any claim the plaintiff makes by way of:

(i)  special damages, or

(ii)  any claim for general loss of business or custom.

pt 15, div 4 (rules 15.19–15.32): Ins 2005 (807), Sch 1 [4].

Part 16 Default judgment

16.1 Application of Part (cf SCR Part 17, rule 1; DCR Part 13, rule 1; LCR Part 11, rule 1)

This Part applies to proceedings commenced by statement of claim.

16.2 Definition of “in default” (cf SCR Part 17, rule 2; DCR Part 13, rule 1; LCR Part 11, rule 1)

(1)  A defendant is in default for the purposes of this Part:

(a)  if the defendant fails to file a defence within the time limited by rule 14.3 (1) or within such further time as the court allows, or

(b)  if the defendant fails to file any affidavit verifying his or her defence in accordance with any requirement of these rules, or

(c)  if, the defendant having duly filed a defence, the court orders the defence to be struck out.

(2)  Despite subrule (1), a defendant is not in default if the defendant:

(a)  has made a payment towards a liquidated claim under rule 6.17, or

(b)  has filed an acknowledgment of claim under rule 20.34, or

(c)  has filed a defence after the time limited by these rules or allowed by the court, but before a default judgment is given against the defendant.

rule 16.2: Am 2007 (327), Sch 1 [2].

16.3 Procedure where defendant in default (cf SCR Part 17, rule 3; DCR Part 13, rule 1)

(1)  If a defendant is in default, the plaintiff:

(a)  may apply for judgment to be given under this Part, according to the nature of his or her claim for relief, against the defendant in default, and

(b)  may carry on the proceedings against any other party to the proceedings.

(1A)  Unless the court otherwise orders, an application under this rule:

(a)  may be dealt with in the absence of the parties, and

(b)  need not be served on the defendant.

(2)  Unless the court orders otherwise, an application for judgment to be given under this Part must be accompanied by:

(a)  an affidavit of service of the statement of claim (the affidavit of service), and

(b)  an affidavit in support of the application (the affidavit in support).

(3)  An affidavit of service is unnecessary in relation to a statement of claim whose service has been effected by the Local Court under rule 10.1 (2).

(4)  Unless the court orders otherwise, an affidavit in support is valid for the purposes of an application only if it has been sworn within 14 days before the date on which the application is filed.

rule 16.3: Am 2005 (395), Sch 1 [29]; 2007 (327), Sch 1 [2].

16.4 Default judgment on claim for possession of land (cf SCR Part 17, rule 7)

(1)  Subject to rule 36.8, if the plaintiff’s claim against a defendant in default is for possession of land only, judgment may be given for the plaintiff for possession of land, as against the defendant, and for costs.

(2)  If, before judgment is given, any person files notice of motion for the person’s addition as a defendant, judgment may not be given under this rule until the motion is disposed of.

(3)  The relevant affidavit in support:

(a)  must identify any persons (other than parties to the proceedings) who were in occupation of the whole or any part of the land:

(i)  as at the time the originating process was filed, or

(ii)  if the claim for possession arises from an amendment to the originating process, as at the time the amendment was made,

and, if any such person was in occupation of the land pursuant to a right of occupation under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987, must contain a statement to that effect, and

(b)  in relation to each such person:

(i)  must state that the person’s occupation of the land is not to be disturbed, or

(ii)  must state that the person is no longer in occupation of any part of the land, or

(iii)  must state that the person has been served with a notice pursuant to rule 6.8 and that the time allowed for the person to apply to the court to be joined as a defendant has now passed,

as the case requires, and

(c)  if the claim for possession of the land arises from a default in the payment of money, must give particulars of the default, and

(d)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the occupation of the land and any default in the payment of money referred to in paragraph (c), and

(e)  must state whether costs are claimed and, if so, how much is claimed for costs, indicating:

(i)  how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and

(ii)  how much is claimed on account of filing fees, and

(iii)  how much is claimed on account of the costs of serving the originating process, and

(f)  must state when and how the originating process was served on the defendant.

rule 16.4: Am 2006 (716), Sch 1 [16] [17]; 2007 No 27, Sch 2.58; 2007 (327), Sch 1 [2] [3]; 2007 (579), Sch 1 [9] [10]; 2009 (501), Sch 1 [10].

16.5 Default judgment on claim for detention of goods (cf SCR Part 17, rule 6)

(1)  If the plaintiff’s claim against a defendant in default relates to the detention of goods only, judgment may be given for the plaintiff against the defendant, in accordance with the plaintiff’s claim:

(a)  for delivery of the goods to the plaintiff and for costs, or

(b)  for payment to the plaintiff of the value of the goods (as assessed by or in accordance with the directions of the court) and for costs,

at the plaintiff’s option.

Note—

See Part 30 for provisions as to assessment of value of goods.

(2)  The relevant affidavit in support:

(a)  must state which goods have, and which have not, been delivered to the plaintiff since the time the originating process was filed, and

(b)  must give particulars of any payments that the defendant has made to the plaintiff in respect of the goods or state that no such payments have been made, as the case may be, since the time the originating process was filed, and

(c)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the delivery or non-delivery of the goods, and

(d)  must state whether costs are claimed and, if so, how much is claimed for costs, indicating:

(i)  how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and

(ii)  how much is claimed on account of filing fees, and

(iii)  how much is claimed on account of the costs of serving the originating process, and

(e)  must state when and how the originating process was served on the defendant.

rule 16.5: Am 2006 (716), Sch 1 [16] [17]; 2007 No 27, Sch 2.58; 2007 (327), Sch 1 [2]; 2007 (579), Sch 1 [11] [12].

16.6 Default judgment on debt or liquidated claim (cf SCR Part 17, rule 4; DCR Part 13, rule 1; LCR Part 11, rule 1)

(1)  If the plaintiff’s claim against a defendant in default is for a debt or liquidated claim or for a claim for unliquidated damages of the kind referred to in rule 14.13 (2), judgment may be given for the plaintiff against the defendant for:

(a)  a sum not exceeding the sum claimed, and

(b)  interest up to judgment, and

(c)  costs.

(2)  The relevant affidavit in support:

(a)  must state the amount due to the plaintiff, in respect of the cause of action for which the proceedings were commenced, as at the time the originating process was filed, and

(b)  must give particulars of any reduction of that amount, and costs, as a consequence of any payments made, or credits accrued, since the time the originating process was filed, and

(c)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts, and

(d)  must state the amount claimed by way of interest, and

(e)  must state whether costs are claimed and, if so, how much is claimed for costs, indicating:

(i)  how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and

(ii)  how much is claimed on account of filing fees, and

(iii)  how much is claimed on account of the costs of serving the originating process, and

(f)  must state when and how the originating process was served on the defendant.

rule 16.6: Am 2006 (716), Sch 1 [16] [17]; 2007 No 27, Sch 2.58; 2007 (327), Sch 1 [2]; 2007 (579), Sch 1 [13] [14].

16.7 Default judgment on claim for unliquidated damages (cf SCR Part 17, rule 5)

(1)  If the plaintiff’s claim against a defendant in default is for unliquidated damages only, judgment may be given for the plaintiff against the defendant for damages to be assessed and for costs.

Note—

See Part 30 for provisions as to assessment of damages.

(2)  The relevant affidavit in support:

(a)  must state that the matter has not been settled with the defendant, and

(b)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the claim, and

(c)  must state whether costs are claimed and, if so, how much is claimed for costs, indicating:

(i)  how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and

(ii)  how much is claimed on account of filing fees, and

(iii)  how much is claimed on account of the costs of serving the originating process, and

(d)  must state when and how the originating process was served on the defendant.

rule 16.7: Am 2006 (716), Sch 1 [16] [17]; 2007 No 27, Sch 2.58; 2007 (327), Sch 1 [2]; 2007 (579), Sch 1 [15] [16].

16.8 Default judgment on mixed claims (cf SCR Part 17, rule 8)

(1)  If the plaintiff’s claim against a defendant in default includes any 2 or more of the claims referred to in this Part, and no other claim, judgment may be given for the plaintiff against the defendant on any of those claims as if it were the plaintiff’s only claim for relief against that defendant.

(2)  In the case of two or more such claims, the relevant affidavit in support must comply with the requirements of this Part in relation to each of those claims.

rules 16.8, 16.9: Am 2007 (327), Sch 1 [2].

16.9 Judgment for costs alone after other claims satisfied (cf SCR Part 17, rule 10 (1); DCR Part 31, rule 13; LCR Part 26, rule 4)

(1)  If a plaintiff is entitled to have judgment given under this Part against a defendant in default for any relief and for costs, but it appears by affidavit that, by reason of the defendant having satisfied the plaintiff’s claims, it is unnecessary for the plaintiff to continue the proceedings against the defendant, judgment for the plaintiff may be given under this Part against that defendant for costs alone.

(2)  Whatever the plaintiff’s claims for relief against a defendant in default, if:

(a)  the defendant satisfies the plaintiff’s claims or complies with the plaintiff’s demands, or

(b)  it otherwise becomes unnecessary for the plaintiff to continue the proceedings against the defendant,

the court may, on application by the plaintiff, give judgment against the defendant for costs.

rules 16.8, 16.9: Am 2007 (327), Sch 1 [2].

16.10 Judgment not limited by plaintiff’s claims for relief (cf SCR Part 17, rules 9 and 10 (2))

Whatever the plaintiff’s claims for relief against a defendant in default, the court may, on application by the plaintiff, give such judgment against the defendant as the plaintiff appears to be entitled to on his or her statement of claim.

Part 17 Admissions

17.1 Definitions

In this Part, other than rule 17.5:

the admitting party means a party who is admitting, or being asked to admit, any matter.

the requesting party means a party in whose favour another party is admitting, or being asked to admit, any matter.

17.2 Voluntary admissions of fact (cf SCR Part 18, rule 1; DCR Part 15, rule 1; LCR Part 14, rule 1)

(1)  The admitting party may, by a notice served on the requesting party, admit, in favour of the requesting party only and for the purposes of the proceedings only, the facts specified in the notice.

(2)  The admitting party may, with the leave of the court, withdraw any such admission.

17.3 Notice to admit facts (cf SCR Part 18, rule 2; DCR Part 15, rule 2; LCR Part 14, rule 2)

(1)  The requesting party may, by a notice served on the admitting party (the requesting party’s notice), require the admitting party to admit, for the purposes of the proceedings only, the facts specified in the notice.

(2)  If, as to any fact specified in the requesting party’s notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party’s notice, serve on the requesting party a notice disputing that fact, that fact is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only.

(3)  The admitting party may, with the leave of the court, withdraw any such admission.

17.4 Notice to admit documents (cf SCR Part 18, rule 5; DCR Part 15, rule 5; LCR Part 14, rule 3)

(1)  The requesting party may, by a notice served on the admitting party (the requesting party’s notice), require the admitting party to admit the authenticity of the documents specified in the notice.

(2)  If, as to any document specified in the requesting party’s notice, the admitting party does not, within 14 days after service on the admitting party of the requesting party’s notice, serve on the requesting party a notice disputing the authenticity of that document, the authenticity of that document is, for the purposes of the proceedings only, taken to have been admitted by the admitting party in favour of the requesting party only.

(3)  The admitting party may, with the leave of the court, withdraw any such admission.

17.5 Admission of documents discovered (cf SCR Part 18, rule 4; DCR Part 15, rule 4)

(1)  In this rule:

admitting party means the party on whom a list of documents is served under rule 21.3.

requesting party means the party by whom a list of documents is served under rule 21.3.

(2)  If a requesting party allows inspection of any documents referred to in a list of documents under rule 21.5, the admitting party is taken to have made the following admissions in favour of the requesting party, unless the court orders otherwise:

(a)  in respect of each document described in the list as an original document, that the document is an original document and was printed, written, signed or executed as it purports to have been,

(b)  in respect of each document described in the list as a copy of an original document, that the document is a true copy.

(3)  Subrule (2) does not apply to a document referred to in the list of documents if the admitting party:

(a)  has, by his or her pleading, denied the authenticity of the document, or

(b)  has served on the requesting party, within 14 days after the time limited under rule 21.5 for inspection of a document, a notice to the effect that the admitting party disputes the authenticity of the document.

(4)  The admitting party and the requesting party are taken to be in the same position as they would have been in had the admitting party, on the date of service of the list of documents, served on the requesting party a notice requiring production at the trial of such of the documents specified in the list as are in the possession of the requesting party.

rule 17.5: Am 2005 (808), Sch 1 [2]–[4].

17.6 Restricted effect of admission (cf SCR Part 18, rule 6; DCR Part 15, rule 6; LCR Part 14, rule 6)

An admission made under this Part in connection with any proceedings:

(a)  may not be used in those proceedings except in favour of the party in whose favour it was made, and

(b)  is taken to have been made for the purposes of those proceedings only.

17.7 Judgment on admissions (cf SCR Part 18, rule 3; DCR Part 15, rule 3; LCR Part 14, rule 5)

(1)  If admissions are made by a party, whether by his or her pleadings or otherwise, the court may, on the application of any other party, give any judgment or make any order to which the other party is entitled on the admissions.

(2)  The court may exercise its powers under this rule even if the other questions in the proceedings have not been determined.

Part 18 Motions

18.1 Applications for court orders to be made by motion (cf SCR Part 19, rule 1; DCR Part 16, rule 1; LCR Part 15, rule 1)

An interlocutory or other application is to be made by motion unless these rules otherwise provide.

18.2 Requirement for notice (cf SCR Part 19, rule 2; DCR Part 16, rule 2; LCR Part 15, rule 2)

(1)  A person may not move the court to make any order unless notice of motion has been filed and served on each person affected by the proposed order.

(2)  Despite subrule (1), a person may move the court to make an order without notice of motion having been filed or served on a person if:

(a)  that person consents to the making of the order, or

(b)  the preparation, filing or service of the notice would cause undue delay or other prejudice to the person by whom the order is sought, or

(c)  the court dispenses with the requirement for such notice to be filed or served, or

(d)  under these rules or the practice of the court, the motion may be made without the prior filing or service (as the case may be) of notice of motion.

18.3 Contents of notice of motion (cf SCR Part 19, rule 2 (4) and (5); DCR Part 16, rule 2 (3) and (4); LCR Part 15, rule 2 (3) and (3A))

(1)  A notice of motion for an order:

(a)  must identify the person by whom the order is sought:

(i)  if the person is already a party to the proceedings, as that party (for example, as first plaintiff or second defendant), or

(ii)  if the person is not yet a party to the proceedings, as the applicant, and

(b)  must identify each person affected by the order:

(i)  if that person is already a party to the proceedings, as that party (for example, as second plaintiff or first defendant), or

(ii)  if that person is not yet a party to the proceedings, as the respondent, and

(c)  if the person by whom the order is sought is not already an active party, must state an address for service for that person, and

(d)  unless the motion is to be moved in the absence of the public, must state the date and time when, and the place where, the motion is to be moved, and

(e)  if the court makes an order as to the time by which the notice is to be served, must bear a note of the order made, and

(f)  must state concisely the nature of the proposed order.

(1A)  In the case of proceedings in Class 1, 2, 3 or 4 of the Land and Environment Court’s jurisdiction, a notice of motion must identify a person who is not yet a party to the proceedings by name alone, and not as the applicant or respondent as required by subrule (1) (a) (ii) or (b) (ii).

(2)  Costs need not be specifically claimed in the notice of motion.

(3)  If a notice of motion is of a kind that, under any Act, any rules of court or any practice of the court, is dealt with in the absence of the public, the notice of motion must contain a statement to the effect that the motion is to be so dealt with.

(4)  If it becomes necessary for an application under subrule (3) to be dealt with in court, the registrar is to refer it to the court and give notice to the parties that the application has been so referred.

rule 18.3: Am 2005 (395), Sch 1 [30]; 2008 (338), Sch 1 [10].

18.4 Time for service of notice (cf SCR Part 19, rule 3; DCR Part 16, rule 3; LCR Part 15, rule 3)

Unless the court orders otherwise, a notice of motion must be served at least 3 days before the date fixed for the motion.

18.5 Notice to be personally served on persons who have not entered appearance (cf SCR Part 19, rule 4; LCR Part 15, rule 2 (4))

A notice of motion must be personally served if the person on whom it is to be served:

(a)  is not a party to the proceedings, or

(b)  is a party to the proceedings, but is not an active party (otherwise than because the party has failed to comply with the requirements of these rules with respect to entering an appearance).

18.6 Hearing of interlocutory applications (cf LCR Part 15, rule 5)

(1)  A party’s notice of motion in any proceedings must include, so far as practicable, all applications that the party desires to make in relation to the proceedings and that, having regard to the nature of the proceedings, can conveniently be dealt with at the one time.

(2)  On the hearing of a party’s notice of motion, any other party may make any application in relation to the proceedings.

(3)  If on the hearing of a party’s notice of motion, any other party makes an application under subrule (2), the court:

(a)  may deal with both applications at the hearing, or

(b)  may adjourn the hearing and, if appropriate, may direct any necessary notice of motion to be given to the other parties.

18.7 Motion may be dealt with in party’s absence (cf SCR Part 19, rule 5; DCR Part 16, rule 5; LCR Part 15, rule 5 (2A))

If service of a notice of motion on any party is required by these rules, and notice of motion has been duly served on that party, the court may hear and dispose of the motion in the absence of that party.

18.8 Further hearing (cf SCR Part 19, rule 8)

(1)  If notice of a motion for any day has been filed or served, and the motion is not disposed of on that day:

(a)  the court may hear and dispose of the notice of motion on any later day fixed by the court, and

(b)  subject to subrule (2), filing or service of a further notice of motion is not required.

(2)  Subrule 1 (b) does not apply:

(a)  if the court directs the filing or service of a further notice of motion, or

(b)  if service is required on a person on whom notice of motion has not previously been served.

18.9 Directions as to conduct of proceedings on notice of motion (cf SCR Part 34, rule 6 (1))

In proceedings on a notice of motion, the court may give directions as to the order of evidence and address and generally as to the conduct of the proceedings.

Part 19 Amendment

19.1 Amending a statement of claim (cf SCR Part 15, rule 12, Part 20, rules 2 and 2A; DCR Part 17, rules 2 and 2A; LCR Part 16, rule 2)

(1)  A plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial.

(2)  If a plaintiff amends his or her statement of claim under subrule (1) after the defendant has filed a defence, the defendant may amend his or her defence at any time within 14 days after service of the amended statement of claim.

(3)  A plaintiff’s right to make an amendment under subrule (1) is not affected by any amendment the plaintiff has made under rule 7.22.

rule 19.1: Am 2007 (164), Sch 1 [4].

19.2 Amendments to add or remove parties (cf SCR Part 20, rule 2 (4) and (5); DCR Part 17, rule 2 (4) and (5); LCR Part 16, rule 2 (3A) and (3B))

(1)  Subject to subrules (2) and (3), the amendments that may be made under rule 19.1 include an amendment that would have the effect of adding a party to, or removing a party from, the proceedings.

(2)  An amendment that would have the effect of adding a person as a plaintiff in proceedings in which a solicitor is acting for the current plaintiff may not be made unless, at the time the amendment is made, the same solicitor:

(a)  is acting for the person to be added, and

(b)  certifies on the amended document:

(i)  that he or she is acting for the person to be added, and

(ii)  that the person to be added consents to being added as a plaintiff.

(3)  An amendment that would have the effect of removing a party from the proceedings may not be made unless that party consents to being removed from the proceedings.

(4)  If a person is added as a party under this rule, the date of commencement of the proceedings in relation to that person is taken to be the date on which the amended document is filed.

19.3 Duration of leave or consent (cf SCR Part 20, rule 5 (1))

An order giving leave to amend a document ceases to have effect:

(a)  at the expiration of the time specified in the order as the time within which the amendment must be made, or

(b)  if no such time is specified, at the expiration of 14 days after the date on which the order is made.

19.4 Disallowance of amendment (cf SCR Part 20, rule 3; DCR Part 17, rule 3; LCR Part 16, rule 3)

(1)  If a party amends a pleading, as referred to in rule 19.1 (1) or (2), the court may, by order, disallow the amendment.

(2)  Unless the court orders otherwise, notice of motion for such an order must be filed within 14 days after the date on which the amended document was served on the applicant.

(3)  If, on the hearing of an application for an order under this rule, the court is satisfied that, had an application for leave to make the amendment been made, it would not have granted leave to make the whole or some part of the amendment, the court must disallow the amendment or that part, as the case may be.

19.5 Mode of amendment generally (cf SCR Part 20, rules 7 and 8; DCR Part 17, rules 7 and 8; LCR Part 16, rules 7 and 8)

(1)  Subject to any directions referred to in rule 19.6, amendments to a filed document must be made by filing a fresh document that has been amended in accordance with these rules or pursuant to an order of the court.

(2)  The amendments must be indicated as follows:

(a)  the omission of existing matter must be indicated in such manner (such as striking through the matter, with or without underlining) as does not affect the legibility of the matter being omitted, and

(b)  the insertion of new matter must be indicated in such manner (such as the use of underlining, bolding or italics) as distinguishes it from existing matter (including existing matter to be omitted).

(3)  A document amended under this rule must be marked with the following particulars:

(a)  the date of the amendment,

(b)  if the amendment is made pursuant to an order of the court, the date of the order,

(c)  if the amendment is made otherwise than pursuant to an order of the court, a reference to the provision of these rules that authorises the amendment,

(d)  the manner in which the omission and insertion of matter have been indicated in the amended document.

(4)  An amended document must retain the existing paragraph numbering, with any additional paragraphs that are inserted after an existing paragraph bearing the number of that paragraph together with the letters “A”, “B” and so on, as in these rules.

rule 19.5: Subst 2005 (808), Sch 1 [5]. Am 2007 (579), Sch 1 [17].

19.6 Court may give directions as to mode of amendment (cf SCR Part 20, rule 6; DCR Part 17, rule 6; LCR Part 16, rule 6)

If the court orders, or grants leave for, the amendment of a filed document, the court may give such directions as it thinks fit concerning:

(a)  the mode of amendment, and

(b)  the mode of service of the amended document or of notice of the amendment, and

(c)  the time within which the amended document or notice of amendment is to be filed and served.

Part 20 Resolution of proceedings without hearing

Division 1 Mediation

20.1 Application of Division

This Division applies to matters referred to mediation under Part 4 of the Civil Procedure Act 2005.

20.2 Directions (cf SCR Part 72C, rule 1)

The court may give directions regulating the practice and procedure to be followed in a mediation, including the preparation and service of documents.

20.3 Statements as to proposed referral to mediation (cf SCR Part 72C, rule 2; Act No 9 1973, section 164A; Act No 11 1970, section 21L)

On any occasion that proceedings are before the court for directions, the court may require each active party to state any of the following:

(a)  whether the party consents to referral of a matter arising in the proceedings for mediation,

(b)  whether the parties agree as to who is to be the mediator,

(c)  whether the parties agree as to the proportions in which the costs of mediation are to be borne, and the terms of any such agreement.

20.4 Appointments by mediator (cf SCR Part 72C, rule 3)

(1)  Within 7 days after being notified that a matter has been referred for mediation, the mediator to whom the matter is referred must appoint a time for the mediation and notify the parties, in writing, of the time appointed.

(2)  The mediator may also appoint a time for a preliminary meeting of the parties.

20.5 Completion of mediation (cf SCR Part 72C, rule 4)

The parties and the mediator must conduct the mediation with the object, so far as practicable, of completing the mediation within 28 days.

20.6 Mediation session procedure (cf SCR Part 72C, rule 6)

(1)  The following provisions apply to the conduct of a mediation session unless the mediator, or the court, otherwise directs:

(a)  the session must be attended:

(i)  subject to subparagraph (ii), by each party or, if a party is a corporation, by an officer of the corporation having authority to settle the proceedings, or

(ii)  if the conduct of the proceedings by a party is controlled by an insurer, by an officer of the insurer having authority to settle the proceedings,

(b)  a party may be accompanied by that party’s barrister or solicitor at the session.

(2)  A person who is required by subrule (1) (a) to attend a mediation session may do so by telephone, video link or other form of communication, but only with the leave of the court or the mediator.

rule 20.6: Am 2008 (494), Sch 1 [6].

20.7 Notifications after mediation

Within 7 days after the conclusion of the last mediation session, the mediator must advise the court of the following:

(a)  the time and date the first mediation session commenced, and

(b)  the time and date the last mediation session concluded.

rule 20.7: Subst 2009 (88), Sch 1 [11].

Division 2 Arbitration

20.8 Proceedings that may not be referred to arbitration (cf DCR Part 51A, rule 2; LCR Part 38, rule 12)

For the purposes of section 38 (3) (b) of the Civil Procedure Act 2005, the following proceedings may not be referred for arbitration unless the parties consent or the court finds there are special circumstances to justify their referral:

(a)  proceedings in which there is an allegation of fraud,

(b)  proceedings in the Small Claims Division of the Local Court.

20.9 Reference to arbitration under Part 5 of the Civil Procedure Act 2005 (cf SCR Part 72B, rule 1; DCR Part 51A, rule 3; LCR Part 38, rule 3)

(1)  If an arbitrator is not prepared to hear or determine referred proceedings, whether before or after any hearing has commenced, the arbitrator must as soon as practicable inform the referring court of that fact, specifying his or her reasons.

(2)  If an arbitrator declines or fails to hear and determine referred proceedings, the referring court must revoke the order referring the proceedings to the arbitrator and may make another order referring the proceedings to another arbitrator.

20.10 Medical reports (cf SCR Part 72B, rule 2; DCR Part 51A, rule 6; LCR Part 38, rule 7)

(1)  In this rule, medical expert includes dentist, medical practitioner, occupational therapist, physiotherapist and psychologist.

(2)  A medical expert’s written report as to a person’s past, present or probable future physical or mental condition:

(a)  is not admissible unless it has been served on each of the active parties no later than 28 days before the arbitration hearing, and

(b)  if so served, is admissible as evidence of the matters contained in it,

unless the referring court or the arbitrator orders otherwise.

(3)  At any arbitration, a party is not entitled to adduce a medical expert’s oral evidence as to a person’s past, present or probable future physical or mental condition unless the referring court or the arbitrator so directs or unless each of the parties consent.

20.11 Award of arbitrator (cf SCR Part 72B, rule 3; DCR Part 51A, rule 9; LCR Part 38, rule 10)

(1)  An arbitrator’s award, and his or her reasons for the award, are to be in or to the effect of the approved form.

(2)  An arbitrator’s reasons for an award are to be specified so that, in his or her opinion, they make the parties aware of his or her view of the case made by each of them.

(3)  If a party fails to attend a hearing before an arbitrator, the arbitrator must include in his or her reasons for an award the fact that the party failed to attend and any information known to the arbitrator relating to the party’s reasons for the failure to attend.

(4)  As soon as practicable after receiving an arbitrator’s award, the registrar must send to each of the parties a copy of the award, with the date of sending set out in the award or in a notice accompanying the award.

(5)  For the purposes of subrule (4), date of sending means the date of leaving, sending, transmitting or otherwise serving copies of the award.

20.12 Rehearing (cf SCR Part 72B, rule 5; DCR Part 51A, rule 11; LCR Part 38, rule 12)

(1)  An application under section 42 of the Civil Procedure Act 2005 for the rehearing of referred proceedings is to be made by notice of motion.

(2)  On the date fixed for the proceedings to be listed before the court, or any date to which the proceedings are adjourned, the court must make a determination as to whether the proceedings are to be a full rehearing or a limited rehearing.

(3)  Before the record of any proceedings is brought before the court for a rehearing, the registrar must seal within the record, or separate from the record, both the application for rehearing and all information as to the nature and quantum of the arbitrator’s award.

(4)  Despite subrule (3), the court is not required to disqualify itself from rehearing the proceedings because it becomes aware in any manner of information as to the nature or quantum of the arbitrator’s award.

(5)  Unless the court otherwise orders, matter that has been sealed within the record is not to be opened, and matter that has been separated from the record is not to be returned to the record, until after the rehearing has been determined.

Division 3 References to referees

20.13 Definitions (cf SCR Part 72, rule 1)

In this Division:

order of referral means an order in force under rule 20.14.

question includes any question or issue arising in any proceedings, whether of fact or law, or both, and whether raised by pleadings, agreement of parties or otherwise.

20.14 Orders of referral (cf SCR Part 72, rule 2)

(1)  At any stage of the proceedings, the court may make orders for reference to a referee appointed by the court for inquiry and report by the referee on the whole of the proceedings or on any question arising in the proceedings.

(2)  The court must not make an order under subrule (1) in respect of a question to be tried with a jury.

20.15 Appointment of referees (cf SCR Part 72, rule 3)

(1)  Subject to this rule, the court may appoint any person as a referee.

(2)  A judicial officer or other officer of the court may not act as a referee otherwise than with the concurrence of the senior judicial officer.

20.16 Two or more referees (cf SCR Part 72, rule 4)

(1)  If the court appoints 2 referees and a decision to be made in the course of proceedings under the reference is not agreed, the decision that is binding is:

(a)  if a judicial officer is a referee, the decision of the judicial officer, or

(b)  in any other case, the decision of the referee appointed by the court to be senior referee.

(2)  If the court appoints 3 or more referees, any decision to be made in the course of proceedings under the reference may be made by a majority of the referees and, failing a majority, the decision that is binding is:

(a)  if a judicial officer is a referee, the decision of the judicial officer, or

(b)  in any other case, the decision of the referee appointed by the court to be senior referee.

20.17 Inquiry and report (cf SCR Part 72, rule 5)

(1)  The court may, at any time and from time to time:

(a)  authorise the referee to inquire into and report on any facts relevant to the inquiry and report on the matter referred, and

(b)  direct the referee to make a further or supplemental report or inquiry and report, and

(c)  give such instructions as the court thinks fit relating to the inquiry or report.

(2)  Instructions under subrule (1) (c) may include provision concerning any experiment or test for the purposes of any inquiry or report of a referee.

20.18 Remuneration of referee (cf SCR Part 72, rule 6)

(1)  The court:

(a)  may determine the amount of the fees to be paid to a referee, and

(b)  may direct how, when and by whom the whole or any part of any such fees are to be payable, and

(c)  may determine the consequences of failure to comply with a direction under paragraph (b).

(2)  Subrule (1) does not affect the powers of the court as to costs.

20.19 Court rooms (cf SCR Part 72, rule 7)

The court may give directions for the provision:

(a)  of services of officers of the court, and

(b)  of court rooms and other facilities,

for the purpose of any reference under this Division.

20.20 Conduct of proceedings under the reference (cf SCR Part 72, rule 8)

(1)  The court may give directions with respect to the conduct of proceedings under the reference.

(2)  Subject to any direction under subrule (1):

(a)  the referee may conduct the proceedings under the reference in such manner as the referee thinks fit, and

(b)  in conducting proceedings under the reference, the referee is not bound by the rules of evidence but may inform himself or herself in relation to any matter in such manner as the referee thinks fit.

(3)  Evidence before the referee:

(a)  may be given orally or in writing, and

(b)  if the referee so requires, must, be given on oath or by affidavit.

(4)  A referee may take the examination of any person.

(5)  Each party must, within a time fixed by the referee but in any event before the conclusion of evidence on the inquiry, give to the referee and each other party a brief statement of the findings of fact and law for which the party contends.

(6)  The parties must at all times do all things which the referee requires to enable a just opinion to be reached and no party may wilfully do or cause to be done any act to delay or prevent an opinion being reached.

20.21 Interlocutory directions (cf SCR Part 72, rule 9)

The court may, at any time and from time to time, on application of the referee or of a party, give directions with respect to any matter arising in proceedings under the reference.

20.22 Setting aside or variation of reference (cf SCR Part 72, rule 10)

(1)  The court may, of its own motion or on application by a referee or a party, set aside or vary any order of referral.

(2)  Nothing in this rule affects any other power of the court to set aside or vary an order of referral.

20.23 Report (cf SCR Part 72, rules 11 and 12)

(1)  Unless the court orders otherwise, the referee must make a written report to the court on the matter referred to the referee, annexing the statements given under rule 20.20 (5) and stating:

(a)  the referee’s opinion on the matter, and

(b)  the referee’s reasons for that opinion.

(2)  On receipt of the report, the court must send it to the parties.

20.24 Proceedings on the report (cf SCR Part 72, rule 13)

(1)  If a report is made under rule 20.23, the court may on a matter of fact or law, or both, do any of the following:

(a)  it may adopt, vary or reject the report in whole or in part,

(b)  it may require an explanation by way of report from the referee,

(c)  it may, on any ground, remit for further consideration by the referee the whole or any part of the matter referred for a further report,

(d)  it may decide any matter on the evidence taken before the referee, with or without additional evidence,

and must, in any event, give such judgment or make such order as the court thinks fit.

(2)  Evidence additional to the evidence taken before the referee may not be adduced before the court except by leave of the court.

Division 4 Compromise

20.25 Definitions (cf SCR Part 22, rule 3)

In this Division:

final deadline for an offer means:

(a)  if the trial is before a jury, the time at which the judicial officer begins to sum up to the jury, or

(b)  if the proceedings have been referred for arbitration, the conclusion of the arbitration hearing, or

(c)  in any other case, the time at which the judicial officer begins to give his or her decision or his or her reasons for decision, whichever is the earlier, on a judgment (except an interlocutory judgment).

offer means an offer of compromise referred to in rule 20.26.

period for acceptance for an offer means the period from when the offer is made until:

(a)  the expiration of the time limited by the offer or, if no time is limited, the expiration of 28 days after the offer is made, or

(b)  the final deadline for offers in respect of the claim to which the offer relates,

whichever first occurs.

20.26 Making of offer (cf SCR Part 22, rules 1A, 2, 3 and 4; DCR Part 19A, rules 1, 2, 2A, 3 and 4; LCR Part 17A, rules 2 and 5)

(1)  In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.

(2)  An offer must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs.

(3)  A notice of offer:

(a)  must bear a statement to the effect that the offer is made in accordance with these rules, and

(b)  if the offeror has made or been ordered to make an interim payment to the offeree, must state whether or not the offer is in addition to the payment so made or ordered.

(4)  Despite subrule (1), a plaintiff may not make an offer unless the defendant has been given such particulars of the plaintiff’s claim, and copies or originals of such documents available to the plaintiff, as are necessary to enable the defendant to fully consider the offer.

(5)  If a plaintiff makes an offer, no order may be made in favour of the defendant on the ground that the plaintiff has not supplied particulars or documents, or has not supplied sufficient particulars or documents, unless:

(a)  the defendant has informed the plaintiff in writing of that ground within 14 days after receiving the offer, or

(b)  the court orders otherwise.

(6)  An offer may be expressed to be limited as to the time it is open for acceptance.

(7)  The following provisions apply if an offer is limited as to the time it is open for acceptance:

(a)  the closing date for acceptance of the offer must not be less than 28 days after the date on which the offer is made, in the case of an offer made 2 months or more before the date set down for commencement of the trial,

(b)  the offer must be left open for such time as is reasonable in the circumstances, in the case of an offer made less than 2 months before the date set down for commencement of the trial.

(8)  Unless the notice of offer otherwise provides, an offer providing for the payment of money, or the doing of any other act, is taken to provide for the payment of that money, or the doing of that act, within 28 days after acceptance of the offer.

(9)  An offer is taken to have been made without prejudice, unless the notice of offer otherwise provides.

(10)  A party may make more than one offer in relation to the same claim.

(11)  Unless the court orders otherwise, an offer may not be withdrawn during the period of acceptance for the offer.

(12)  A notice of offer that purports to exclude, modify or restrict the operation of rule 42.14 or 42.15 is of no effect for the purposes of this Division.

20.27 Acceptance of offer (cf SCR Part 22, rule 3; DCR Part 19A, rule 3; LCR Part 17A, rule 5)

(1)  A party may accept an offer by serving written notice of acceptance on the offeror at any time during the period of acceptance for the offer.

(2)  An offer may be accepted even if a further offer is made during the period of acceptance for the first offer.

(3)  If an offer is accepted in accordance with this rule, any party to the compromise may apply for judgment to be entered accordingly.

20.28 Withdrawal of acceptance (cf SCR Part 22, rule 5; DCR Part 19A, rule 5; LCR Part 17A, rule 7)

(1)  A party who accepts an offer may withdraw the acceptance in any of the following circumstances by serving written notice of withdrawal on the offeror:

(a)  if the offer provides for payment of money, or the doing of any other act, and the sum is not paid to the offeree or into court, or the act is not done, within 28 days after acceptance of the offer or within such other time as the offer provides, or

(b)  if the court grants the party leave to withdraw the acceptance.

(2)  If acceptance of an offer is withdrawn:

(a)  except as provided by paragraph (b), all steps in the proceedings that have been taken as a consequence of the offer having been accepted cease to have effect, and

(b)  the court may give directions:

(i)  to restore the parties as nearly as may be to their positions at the time of the acceptance, and

(ii)  to give effect to any steps in the proceedings that have been taken as a consequence of the offer having been accepted, and

(iii)  to provide for the further conduct of the proceedings,

and may do so either after the offer is withdrawn or when granting leave to withdraw the offer.

20.29 Failure to comply with accepted offer (cf SCR Part 22, rule 8; DCR Part 19A, rule 8; LCR Part 17A, rule 10)

(1)  If the plaintiff, being a party to an accepted offer, fails to comply with the terms of the offer, the defendant is entitled:

(a)  to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or

(b)  to an order that the proceedings be dismissed, and to judgment accordingly,

as the defendant elects, unless the court orders otherwise.

(2)  If the defendant, being a party to an accepted offer, fails to comply with the terms of the offer, the plaintiff is entitled:

(a)  to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or

(b)  to an order that the defence be struck out, and to judgment accordingly,

as the plaintiff elects, unless the court orders otherwise.

(3)  If a party to an accepted offer fails to comply with the terms of the offer, and a defendant in the proceedings has made a statement of cross-claim or cross-summons that is not the subject of the accepted offer, the court:

(a)  may make such order or give such judgment under this rule, and

(b)  may make such order as to the further conduct of proceedings on the statement of cross-claim or cross-summons,

as it thinks fit.

20.30 Disclosure of offer to court or arbitrator (cf SCR Part 22, rule 7; DCR Part 19A, rule 7; LCR Part 17A, rule 9)

(1)  No statement of the fact that an offer has been made may be contained in any pleading or affidavit.

(2)  If an offer is not accepted, no communication with respect to the offer may be made to the court at the trial or, as the case may require, to the arbitrator.

(3)  Despite subrule (2), an offer may be disclosed to the court or, as the case may require, to the arbitrator:

(a)  if a notice of offer provides that the offer is not made without prejudice, or

(b)  to the extent necessary to enable the offer to be taken into account for the purpose of determining an amount of interest up to judgment, or

(c)  after all questions of liability and relief have been determined, to the extent necessary to determine questions as to costs, or

(d)  to the extent necessary to enable the offer to be taken into account for the purposes of section 73 (4) of the Motor Accidents Act 1988, section 137 (4) of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987.

20.31 Compromises in certain Supreme Court proceedings (cf SCR Part 8, rule 14)

(1)  This rule applies to proceedings in the Supreme Court concerning:

(a)  the administration of a deceased person’s estate, or

(b)  property the subject of a trust, or

(c)  the construction of an Act, instrument or other document,

involving any matter in which one or more persons have the same interest or liability.

(2)  The court may approve a compromise:

(a)  that one party has assented to, or

(b)  that the court has sanctioned on behalf of one party,

being in either case a compromise that affects other persons (not being parties) having the same interest or liability, but only if the court is satisfied that the compromise will be to the benefit of those other persons.

(3)  A compromise referred to in subrule (2) binds the absent persons unless the court’s approval of the compromise has been obtained by fraud or non-disclosure of material facts.

20.32 Offer to contribute (cf SCR Part 22, rule 12; DCR Part 19A, rule 11; LCR Part 17A, rule 13)

(1)  If in any proceedings:

(a)  one party (the first party) stands to be held liable to another party (the second party) to contribute towards any debt or damages which may be recovered against the second party in the proceedings, and

(b)  the first party, at any time after entering an appearance, makes an offer to the second party to contribute to a specified extent to the debt or damages, and

(c)  the offer is made without prejudice to the first party’s defence,

the offer must not be brought to the attention of the court or any arbitrator until all questions of liability or amount of debt or damages have been decided.

(2)  In subrule (1), debt or damages includes any interest up to judgment claimed on any debt or damages.

Division 5

20.33  (Repealed)

pt 20, div 5 (rule 20.33): Rep 2007 (164), Sch 1 [5].

Division 6 Acknowledgment of liquidated claim

20.34 Defendant may file acknowledgment (cf DCR Part 14, rule 2; LCR Part 12, rule 2)

(1)  In proceedings with respect to a liquidated claim, the defendant may file a statement acknowledging the whole of the amount of the claim.

(2)  Subrule (1) does not apply if the defendant has filed a defence or the plaintiff has, in accordance with these rules, filed an application for a default judgment.

(3)  On the filing of a statement under subrule (1), judgment is to be entered for the plaintiff for the whole of the amount of the claim.

(4)  Judgment entered as referred to in subrule (3) fully discharges all of the plaintiff’s claims in the proceedings.

(5)  In proceedings in which a default judgment has been set aside under rule 36.15 or 36.16, the defendant may not file a statement referred to in subrule (1) except by leave of the court.

Note—

See rule 6.11 which allows the defendant in proceedings on a liquidated claim to submit to judgment by his or her notice of appearance.

Part 21 Discovery, inspection and notice to produce documents

Division 1 Discovery and inspection

21.1 Definitions (cf SCR Part 23, rule 1; DCR Part 22, rule 1)

(1)  In this Division:

excluded document, in relation to proceedings the subject of an order for discovery, means any of the following documents:

(a)  any document filed in the proceedings,

(b)  any document served on party A after the commencement of the proceedings,

(c)  any document that wholly came into existence after the commencement of the proceedings,

(d)  any additional copy of a document included in the list of documents, being a document that contains no mark, deletion or other matter, relevant to a fact in question, not present in the document so included,

(e)  any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in the list of documents,

but does not include any document that the court declares not to be an excluded document for the purposes of those proceedings.

list of documents means a list of documents referred to in rule 21.3.

order for discovery means an order referred to in rule 21.2.

party A means a party to whom another party is giving discovery, or being ordered to give discovery, of documents.

party B means a party who is giving discovery, or being ordered to give discovery, of documents.

party B’s affidavit means an affidavit prepared in relation to the list of documents under rule 21.4.

Note—

See the Dictionary for further definitions including, in particular, a definition of possession.

(2)  For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

21.2 Order for discovery (cf SCR Part 23, rule 3 (1), (2) and (3); DCR Part 22, rule 3 (1), (2) and (3))

(1)  The court may order that party B must give discovery to party A of:

(a)  documents within a class or classes specified in the order, or

(b)  one or more samples (selected in such manner as the court may specify) of documents within such a class.

(2)  A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.

(3)  Subject to subrule (2), a class of documents may be specified:

(a)  by relevance to one or more facts in issue, or

(b)  by description of the nature of the documents and the period within which they were brought into existence, or

(c)  in such other manner as the court considers appropriate in the circumstances.

(4)  An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.

rule 21.2: Am 2007 (164), Sch 1 [6].

21.3 List of documents to be prepared (cf SCR Part 23, rule 3 (5) and (6); DCR Part 22, rule 3 (5) and (6))

(1)  Party B must comply with an order for discovery by serving on party A a list of documents that deals with all of the documents (other than excluded documents) referred to in the order.

(2)  The list of documents:

(a)  must be divided into two parts:

(i)  Part 1 relating to documents in the possession of party B, and

(ii)  Part 2 relating to documents that are not, but that within the last 6 months prior to the commencement of the proceedings have been, in the possession of party B, and

(b)  must include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group, and

(c)  must specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and

(d)  must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise.

(3)  Party B must comply with the requirements of subrule (1):

(a)  within 28 days after an order for discovery is made, or

(b)  within such other period (whether more or less than 28 days) as the order may specify.

rule 21.3: Am 2005 (625), Sch 1 [13].

21.4 Affidavit and certificate supporting list of documents (cf SCR Part 23, rule 3 (5), (6) and (7); DCR Part 22, rule 3 (5), (6) and (7))

(1)  The list of documents must be accompanied by:

(a)  a supporting affidavit, and

(b)  if party B has a solicitor, by a solicitor’s certificate of advice.

Note—

See rule 35.3 as to who may make such an affidavit.

(2)  The affidavit referred to in subrule (1) (a) must state that the deponent:

(a)  has made reasonable inquiries as to the documents referred to in the order, and

(b)  believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents), and

(c)  believes that the documents in Part 1 of the list of documents are within the possession of party B, and

(d)  believes that the documents in Part 2 of the list of documents are within the possession of the persons (if any) respectively specified in that Part, and

(e)  as to any document in Part 2 of the list of documents in respect of which no such person is specified, has no belief as to whose possession the document is in,

and must state, in respect of any document that is claimed to be a privileged document, the facts relied on as establishing the existence of the privilege.

(3)  The solicitor’s certificate of advice referred to in subrule (1) (b) must state that the solicitor:

(a)  has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised), and

(b)  is not aware of any documents within any of the classes specified in the order (other than excluded documents) that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents).

21.5 Documents to be made available (cf SCR Part 23, rule 3 (9) and (10); DCR Part 22, rule 3 (9) and (10))

(1)  Subject to the requirements of any Act or law, Party B must ensure that the documents described in Part 1 of the list of documents (other than privileged documents):

(a)  are physically kept and arranged in a way that makes the documents readily accessible and capable of convenient inspection by party A, and

(b)  are identified in a way that enables particular documents to be readily retrieved,

from the time the list of documents is served on party A until the time the trial of the proceedings is completed.

(2)  Within 21 days after service of the list of documents, or within such other period or at such other times as the court may specify, party B must, on request by party A:

(a)  produce for party A’s inspection the documents described in Part 1 of the list of documents (other than privileged documents), and

(b)  make available to party A a person who is able to, and does on party A’s request, explain the way the documents are arranged and assist in locating and identifying particular documents or classes of documents, and

(c)  provide facilities for the inspection and copying of such of the documents (other than privileged documents) as are not capable of being photocopied, and

(d)  provide photocopies of, or facilities for the photocopying of, such of the documents as are capable of being photocopied, subject to:

(i)  party A’s solicitor undertaking to pay the reasonable costs of providing those photocopies or facilities, or

(ii)  if party A has no solicitor, party A providing to party B an amount not less than a reasonable estimate of the reasonable costs of providing those photocopies or facilities.

rule 21.5: Am 2006 (288), Sch 1 [6].

21.6 Subsequently found documents to be made available (cf SCR Part 23, rule 3 (8); DCR Part 22, rule 3 (8))

If at any time after party B’s affidavit is made, and before the end of the hearing, party B becomes aware:

(a)  that any document within the class or classes specified in the relevant order for discovery (not being an excluded document) but not included in Part 1 of the list of documents is within, or has come into, party B’s possession, or

(b)  that any document included in Part 1 of the list of documents which was claimed to be a privileged document was not, or has ceased to be, a privileged document,

party B must forthwith give written notice to party A of that fact, and comply with rule 21.5 in respect of the document, as if the document had been included in Part 1 of the list of documents and the list had been served on the date of the giving of the notice.

21.7 Discovered documents not to be disclosed (cf SCR Part 23, rule 3 (11) and (12); DCR Part 22, rule 3 (11) and (12))

(1)  No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.

(2)  Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order.

21.8 Personal injury claims (cf SCR Part 23, rule 5; DCR Part 22, rule 5)

In any proceedings on a common law claim:

(a)  for damages arising out of the death of, or bodily injury to, any person, or

(b)  for contribution in respect of damages so arising,

an order for discovery may not be made in relation to any document unless the court, for special reasons, orders otherwise.

Division 2 Notice to produce before hearing

21.9 Definitions

(1)  In this Division:

notice to produce means a notice to produce referred to in rule 21.10.

party A means a party to whom another party is producing, or being asked to produce, documents or things for inspection.

party B means a party who is producing, or being asked to produce, documents or things for inspection.

(2)  For the purposes of this Division, a document or thing is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence.

21.10 Notice to produce for inspection by parties (cf SCR Part 23, rule 2 (1); DCR Part 22, rule 2 (1), (1A) and (2))

(1)  Party A may, by notice served on party B, require party B to produce for inspection by party A:

(a)  any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and

(b)  any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.

(2)  A notice to produce may specify a time for production of all or any of the documents or things required to be produced.

21.11 Production under notice to produce (cf SCR Part 23, rule 2 (3) and (4); DCR Part 22, rule 2 (3) and (4))

(1)  Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce:

(a)  produce for party A’s inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B’s possession, and

(b)  serve on party A, in respect of any document that is not produced, a notice stating:

(i)  that the document is a privileged document, or

(ii)  that the document is, to the best of party B’s knowledge, information and belief, in the possession of a person identified in the notice, or

(iii)  that party B has no knowledge, information or belief as to the existence or whereabouts of the document.

(2)  For the purposes of subrule (1):

(a)  unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and

(b)  unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time.

21.12 Personal injury claims (cf SCR Part 23, rule 5, Part 24, rule 1 (3); DCR Part 22, rule 5)

In any proceedings on a common law claim:

(a)  for damages arising out of the death of, or bodily injury to, any person, or

(b)  for contribution in respect of damages so arising,

a party is not required to comply with a notice to produce in relation to a document or thing that has not been referred to in any originating process, pleading, affidavit or witness statement filed or served by that party unless the court, for special reasons, orders otherwise.

21.13 Costs and expenses of compliance (cf rule 33.11)

(1)  The court may order party A to pay the amount of any reasonable loss or expense incurred by party B in complying with a notice to produce.

(2)  If an order is made under subrule (1), the court must fix the amount or direct that it be fixed in accordance with the court’s usual procedure in relation to costs.

rule 21.13: Ins 2007 (327), Sch 1 [4].

Part 22 Interrogatories

22.1 Interrogatories (cf SCR Part 24, rules 1–6; DCR Part 22A, rules 1–6)

(1)  At any stage of the proceedings, the court may order any party to answer specified interrogatories.

(2)  An application for such an order must be accompanied by a copy of the proposed interrogatories.

(3)  In the case of proceedings on:

(a)  a claim for damages arising out of the death of, or bodily injury to, any person, or

(b)  a claim for contribution in relation to damages so arising,

such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order.

(4)  In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made.

(5)  An order to answer interrogatories:

(a)  may require the answers to be given within a specified time, and

(b)  may require the answers, or any of them, to be verified by affidavit, and

(c)  in circumstances in which rule 35.3 authorises someone other than the party to whom the order is addressed to make the relevant affidavit, may specify the person to make the affidavit, or the persons from whom the person to make the affidavit may be chosen, in relation to the interrogatories or any of them.

22.2 Objections to specific interrogatories (cf SCR Part 24, rule 6 (3))

A party may not object to being ordered to answer an interrogatory except on the following grounds:

(a)  the interrogatory does not relate to any matter in issue between that party and the party seeking the order,

(b)  the interrogatory is vexatious or oppressive,

(c)  the answer to the interrogatory could disclose privileged information.

22.3 Answers to interrogatories (cf SCR Part 24, rules 4 and 6; DCR Part 22A, rules 4 and 6)

(1)  A party who has been ordered to answer interrogatories must do so within the time required by the order by serving a statement of answers on all other active parties.

(2)  Such a statement:

(a)  must deal with each interrogatory specifically, setting out each interrogatory followed by the answer to it, and

(b)  must answer the substance of each interrogatory without evasion, and

(c)  to the extent to which, and in the manner in which, the order so requires, must be verified by affidavit.

Note—

See rule 22.6 as to the admission in evidence of answers to interrogatories.

22.4 Insufficient answer (cf SCR Part 24, rule 8; DCR Part 22A, rule 8)

(1)  If a party who has been ordered to answer interrogatories under rule 22.1 fails to answer an interrogatory sufficiently within the time specified in the order or, if no such time is specified, within 28 days after being served with the order, the court:

(a)  may order the party to make a further answer, and to verify that further answer by affidavit, or

(b)  may order the party or, as the case requires, any person of the kind referred to in rule 35.3 (1), to attend to be orally examined.

(2)  This rule does not limit the power of the court under rule 22.5.

22.5 Default (cf SCR Part 24, rule 9)

(1)  If a party who has been ordered to answer interrogatories under rule 22.1 or 22.4 fails to answer an interrogatory sufficiently, the court may give or make such judgment or such order as it thinks fit, including:

(a)  if the party in default is a plaintiff, an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the party in the proceedings, or

(b)  if the proceedings were commenced by statement of claim and the party in default is a defendant, an order that the party’s defence be struck out.

(2)  If a party has a solicitor, an order under rule 22.1 or 22.4 need not, for the purposes of enforcement of the order by committal or sequestration, be served personally.

(3)  If an order under rule 22.1 or 22.4 is not served personally on a party having a solicitor, the order may not be enforced by committal of any person, or by sequestration of any person’s property, if that person shows that he or she did not have notice of the order within sufficient time to comply with the order.

22.6 Answers to interrogatories as evidence (cf SCR Part 24, rule 10; DCR Part 22A, rule 10)

(1)  A party:

(a)  may tender as evidence one or more answers to interrogatories without tendering the others, and

(b)  may tender as evidence part of an answer to an interrogatory without tendering the whole of the answer.

(2)  If the whole or part of an answer to an interrogatory is tendered as evidence, the court:

(a)  may look at the whole of the answer, and

(b)  if it appears to the court that any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without that other answer or part, may reject the tender unless that other answer or part is also tendered.

Part 23 Medical examinations and inspection of property

Division 1 Medical examination

23.1 Application and definitions (cf SCR Part 25, rule 1; DCR Part 23, rule 1; LCR Part 20, rule 1)

(1)  This Division applies to proceedings in which:

(a)  a person’s physical or mental condition is relevant to a matter in question, and

(b)  either:

(i)  that person is a party, or

(ii)  that person is a person for whose benefit a party is claiming relief under the Compensation to Relatives Act 1897.

(2)  In this Division:

first party means the party referred to in subrule (1) (b).

medical examination includes any examination by a medical expert but does not include tests referred to in Division 2.

medical expert includes dentist, medical practitioner, occupational therapist, optometrist, physiotherapist and psychologist.

notice for medical examination means a notice referred to in rule 23.2 (1).

person concerned means the person referred to in subrule (1) (a) (whether or not the first party) whose physical or mental condition is relevant to a matter in question.

23.2 Notice for medical examination (cf SCR Part 25, rule 2; DCR Part 23, rule 2; LCR Part 20, rule 2)

(1)  Any party other than the first party may serve on the first party a notice for the medical examination of the person concerned.

(2)  A notice for medical examination is to be in the form of a request that the person concerned submit to examination by a specified medical expert at a specified time and place.

23.3 Expenses (cf SCR Part 25, rule 3; DCR Part 23, rule 3; LCR Part 20, rule 3)

A party who serves a notice for medical examination must, on request by the first party, pay to the first party a reasonable sum to meet the travelling and other expenses of the person concerned of and incidental to the medical examination, including the expenses of having a medical expert chosen by the person attend the examination.

23.4 Order for examination (cf SCR Part 25, rule 5; DCR Part 23, rule 5; LCR Part 20, rule 5)

(1)  The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place.

(2)  If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.

23.5 Medical expert for person concerned (cf SCR Part 25, rule 6; DCR Part 23, rule 6; LCR Part 20, rule 7)

The person concerned may have a medical expert of his or her choice attend a medical examination under this Division.

Division 2 Rehabilitation assessment

23.6 Application and definitions (cf SCR Part 25, rule 7A; DCR Part 23, rule 7)

(1)  This Division applies to proceedings in which the extent of impairment of a party’s earning capacity due to personal injuries to that party is relevant to any matter in question.

(2)  In this Division:

occupational rehabilitation service has the same meaning as it has in section 59 of the Workers Compensation Act 1987.

party concerned means the party referred to in subrule (1).

23.7 Order for rehabilitation tests (cf SCR Part 25, rule 7B; DCR Part 23, rule 8)

(1)  The court may make orders for testing the party concerned for the purpose of assessing the extent of impairment of the party’s earning capacity, including an order to submit to a test, under the direction of a medical practitioner, during a specified period and at a specified place.

(2)  The specified place referred to in subrule (1) may be:

(a)  a hospital, or

(b)  a rehabilitation centre conducted by a hospital, or

(c)  some other suitable place,

at which treatment by way of rehabilitation, or an occupational rehabilitation service, is provided.

(3)  If the court makes an order under subrule (1) that the party concerned submit to a test, the party concerned must do all things reasonably requested, and answer all questions reasonably asked, by any medical practitioner, or by any person conducting the test, for the purposes of the test.

(4)  The terms on which the court may make orders under subrule (1) include terms for the payment by the party obtaining the order to the party concerned of any expense or loss incurred in complying with the order.

Division 3 Inspection of property

23.8 Inspection of property (cf SCR Part 25, rule 8; DCR Part 23, rule 9; LCR Part 20, rule 8)

(1)  For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following:

(a)  the inspection of any property,

(b)  the taking of samples of any property,

(c)  the making of any observation of any property,

(d)  the trying of any experiment on or with any property,

(e)  the observation of any process.

(2)  An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property.

(3)  A party applying for an order under this rule must, so far as practicable, serve notice of motion on each person who would be affected by the order if made.

(4)  The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995.

(5)  This rule extends to proceedings on an application for an order under Part 5 (Preliminary discovery and inspection).

(6)  In this rule, property includes any land and any document or other chattel, whether in the ownership or possession of a party or not.

Division 4 Default

23.9 Default (cf SCR Part 25, rule 10; DCR Part 23, rule 10; LCR Part 20, rule 10)

(1)  If a party makes default in compliance with this Part, or a notice or order under this Part, the court may give or make such judgment or such order as it thinks fit, including:

(a)  if the party in default is a plaintiff, an order that the proceedings be dismissed as to the whole or any part of the relief claimed by the party in the proceedings, or

(b)  if the proceedings were commenced by statement of claim and the party in default is a defendant, an order that the party’s defence be struck out and that judgment be given accordingly.

(2)  If a person for whose benefit relief is being claimed, not being a party, makes default in compliance with this Part, or an order under this Part, the court may give such judgment, or make such order, as it thinks fit, including an order that the proceedings be dismissed as to the relief so claimed.

(3)  This rule does not limit the powers of the court to punish for contempt.

Part 24 Taking evidence otherwise than at trial

24.1 Application of Part

This Part applies to proceedings in the Supreme Court or the District Court.

24.2 Construction of certain references (cf SCR Part 27, rule 1)

In this Part, a reference to the Evidence on Commission Act 1995, or to a provision of that Act, includes a reference to the Foreign Evidence Act 1994 of the Commonwealth, or to the corresponding provision of that Act.

24.3 Order for examination of witness (cf SCR Part 27, rule 1A; DCR Part 25, rule 1)

(1)  For the purposes of any proceedings, the court may make an order for the examination of a person, otherwise than at trial, at any place:

(a)  in New South Wales, or

(b)  outside New South Wales, but in Australia, or

(c)  outside Australia.

(2)  An order under this rule:

(a)  must nominate the person by whom the examination is to be conducted (the examiner), and

(b)  may specify the time at which, or within which, the examination is to be conducted.

24.4 Judicial officer or court officer as examiner (cf SCR Part 27, rule 1C; DCR Part 25, rule 3)

(1)  A judicial officer or other officer of the court may not act as an examiner otherwise than with the concurrence of the senior judicial officer.

(2)  An applicant for an order for a person’s examination, outside New South Wales, by a judicial officer or other officer of the court may request the proposed examiner to certify the amount which in his or her opinion should be paid into court as provision for expenses of the examination.

(3)  Such an order may be expressed to be conditional on the payment into court, by such person and within such time as the court may specify, of not less than the amount certified in accordance with subrule (2).

(4)  If satisfied that the amount paid or payable into court is or may be insufficient to provide for the expenses of the examination, the court, on application of the registrar:

(a)  may make an order directing the party on whose application the order for examination was made to pay into court such further amount, and within such time, as the court may specify, and

(b)  may make an order:

(i)  staying the proceedings, so far as they concern the whole or any part of any claim for relief by that party, or

(ii)  suspending the operation of the order for examination,

until such payment is made.

(5)  The registrar must apply so much of the amount paid into court as may from time to time be required for the purpose in the payment, to or at the direction of the examiner, of:

(a)  expenses incurred in relation to the examination, or

(b)  advances for expenses to be incurred in relation to the examination.

(6)  Any amount paid under subrule (5) that is not required for expenses in relation to the examination must be repaid into court.

(7)  After the conclusion of the examination, on the examiner certifying that no expenses in relation to the examination remain unpaid or unrecouped from the money in court, the registrar must, subject to any order of the court, refund to the person by whom the money was paid into court (and, if more than one, in the same proportions as their respective payments into court) any money remaining in court.

24.5 Letter of request (cf SCR Part 27, rule 2; DCR Part 25, rule 5)

(1)  After an order is made under section 6 (1) (c) or 20 (1) (c) of the Evidence on Commission Act 1995 for the issue of a letter of request, or an order of the same kind is made under section 9 or 23 of that Act, the party obtaining the order:

(a)  must lodge with the principal registrar:

(i)  a form of the appropriate letter of request, and

(ii)  the interrogatories (if any) and cross-interrogatories (if any) to accompany the letter of request, and

(iii)  if the letter of request is to be issued to the judicial authorities of a country in which English is not an official language appropriate to the place where the evidence is to be taken, and unless the court orders otherwise, a translation of the documents referred to in subparagraphs (i) and (ii) into an official language of that country appropriate to that place, and

(b)  must file:

(i)  a copy of each of the documents referred to in paragraph (a), and

(ii)  an undertaking by the party obtaining the order, or his or her solicitor, to pay all expenses incurred by the court, or by any person at the request of the court, in respect of the letter of request.

(2)  A translation filed under subrule (1) (a) must be certified by the person making it to be a correct translation, and the certificate must state the person’s full name and address and the office or qualification by reason of which the person so certifies.

24.6 Evidence otherwise than on oath (cf SCR Part 27, rule 2B; DCR Part 25, rule 7)

Unless the court orders otherwise:

(a)  a person may be examined outside Australia, otherwise than on oath, under an order under rule 24.3 (1) (c), and

(b)  evidence of a person may be taken outside Australia, otherwise than on oath, under an order under section 6 (1) (c) or 20 (1) (c) of the Evidence on Commission Act 1995, or under an order of the same kind made under section 9 or 23 of that Act,

if the person is examined or the evidence is taken in accordance with the procedure of the country concerned.

24.7 Documents for examiner (cf SCR Part 27, rule 3; DCR Part 25, rule 8)

(1)  The party obtaining an order for examination before an examiner must furnish the examiner with copies of such of the documents in the proceedings as are necessary to inform the examiner of the issues to which the examination is to relate.

(2)  If the documents in the proceedings are not sufficient to inform the examiner of the issues to which the examination is to relate, the court may, in the order for examination or in a later order, state the issues to which the examination is to relate.

(3)  This rule does not apply if the examiner is a judicial officer of the court by which the order for examination was made.

24.8 Appointment for examination (cf SCR Part 27, rule 4; DCR Part 25, rule 9)

(1)  The examiner is to appoint a place (and, subject to the order for examination, a time) for the examination.

(2)  The time appointed by the examiner must be as soon as practicable after the making of the order, having regard to all the circumstances (including the convenience of the person to be examined).

(3)  The examiner must give notice of an appointment under this rule to the party obtaining the order and, not less than 3 days before the time appointed, that party must give notice of the appointment to each other party.

24.9 Conduct of examination (cf SCR Part 27, rule 5; DCR Part 25, rule 10)

(1)  The examiner must permit the parties to attend the examination, together with their barristers and solicitors.

(2)  Subject to this Part, the proceedings before the examiner are to be in accordance with the procedure of the court.

(3)  Unless the court orders otherwise:

(a)  a person who is examined before an examiner may be cross-examined and re-examined, and

(b)  the examination, cross-examination and re-examination of such a person are to be conducted in the same way as at a trial.

(4)  The examiner may put any question to a person being examined:

(a)  as to the meaning of any answer made by that person, or

(b)  as to any matter arising in the course of the examination.

(5)  The examiner may adjourn the examination from time to time or from place to place.

24.10 Examination of additional persons (cf SCR Part 27, rule 6; DCR Part 25, rule 11)

(1)  On the application of a party to the proceedings, an examiner who is a judicial officer of the court may examine any person not named or provided for in the order for examination.

(2)  With the written consent of each party to the proceedings, an examiner who is not a judicial officer of the court may examine any person not named or provided for in the order for examination and, if he or she does so, must annex those consents to the transcript of that person’s evidence.

24.11 Objection (cf SCR Part 27, rule 7; DCR Part 25, rule 12)

(1)  If a party objects to a question put to a person being examined, or a person being examined objects to answering such a question or to producing any document or thing:

(a)  the examiner must state to the parties his or her opinion, but must not decide, on the validity of the objection, and

(b)  the question, the ground for the objection, the examiner’s opinion on the objection and the answer (if any) of the person being examined must be set out in the transcript of that person’s evidence or in a statement attached to the transcript, and

(c)  the court may, on motion by any party, decide the validity of the objection, and

(d)  if the court decides against the objector, the court may order the objector to pay the costs occasioned by the objection.

(2)  This rule does not apply if the examiner is a judicial officer of the court.

24.12 Recording of evidence generally (cf SCR Part 27, rule 8; DCR Part 25, rule 13)

The evidence taken at an examination must be recorded in writing (whether longhand or shorthand) or by some other method (whether mechanical, electronic or otherwise) that is capable of making a permanent record of the evidence.

24.13 Audio-visual recording of evidence (cf SCR Part 27, rule 8A; DCR Part 25, rule 14)

The court or the examiner may give directions for the making of an audio-visual recording of the proceedings on an examination.

24.14 Authentication and filing (cf SCR Part 27, rule 9; DCR Part 25, rule 15)

(1)  A transcript of the evidence recorded in relation to an examination must be prepared and the person who prepares the transcript must certify that it is a correct transcript of the evidence so recorded.

(2)  The examiner must sign the transcript of the evidence and any document that constitutes an audio-visual recording under rule 24.13.

(3)  The examiner must certify on the transcript, or on a separate document annexed to the transcript, as to the time occupied in the examination and as to the fees received by the examiner in respect of the examination.

(4)  The examiner must send the transcript of the evidence, and any document that constitutes an audio-visual recording under rule 24.13, to the registrar and the registrar must file them in the proceedings.

(5)  Unless the court orders otherwise, the examiner must send the exhibits to the registrar, and the registrar must deal with the exhibits in such manner as the court may direct.

(6)  Subrules (1), (3) and (4) do not apply if the examiner is a judicial officer of the court.

24.15 Special report (cf SCR Part 27, rule 10; DCR Part 25, rule 16)

(1)  The examiner may furnish to the court a special report with regard to any examination conducted by the examiner and with regard to the absence of any person from, or the conduct of any person at, the examination.

(2)  The court may direct such proceedings to be taken, or make such order, on the report as the court thinks fit.

24.16 Default of witness (cf SCR Part 27, rule 11; DCR Part 25, rule 17)

(1)  If a person, required by subpoena to attend before an examiner who is not a judicial officer of the court:

(a)  refuses to be sworn for the purposes of the examination, or

(b)  refuses to answer any lawful question, or

(c)  refuses to produce any document or thing,

the examiner must, at the request of any party, give to that party a certificate, signed by the examiner, of the refusal.

(2)  On the certificate being filed, and on motion by any party, the court:

(a)  may order the person to be sworn, or to answer the question or to produce the document or thing, as the case may be, and

(b)  may order the person to pay any costs occasioned by the refusal.

24.17 Order for payment of expenses (cf SCR Part 27, rule 12; DCR Part 25, rule 18)

If a party fails to comply with an undertaking referred to in rule 24.5 (1) (b) (ii) within 7 days after service on the party of notice of the amount of the expenses concerned, the court:

(a)  may order the party to pay the amount of the expenses to the registrar by a specified date, and

(b)  if the party fails to comply with that order by the specified date, may give such judgment, or make such order, as it thinks fit.

24.18 Perpetuation of testimony (cf SCR Part 27, rule 13; DCR Part 25, rule 19)

(1)  Witnesses may not be examined to perpetuate testimony unless proceedings to perpetuate that testimony have been commenced.

(2)  Any person may commence proceedings to perpetuate testimony that may be material for establishing any right or claim to any relief, which right or claim cannot be established before the happening of a future event.

(3)  If proceedings to perpetuate testimony touch any matter or thing in which the Crown may have an interest, the Attorney General may be made a defendant.

(4)  If, under subrule (3), the Attorney General is made a defendant to proceedings to perpetuate testimony, evidence taken in those proceedings is not inadmissible in other proceedings just because the Crown was not a party to the proceedings to perpetuate testimony.

(5)  Subrule (2) does not affect the right of any person to commence proceedings to perpetuate testimony in cases to which that subrule does not apply.

24.19 Operation of directions under Evidence on Commission Act 1995 (cf SCR Part 27, rule 2A; DCR Part 25, rule 6)

To the extent to which they deal with matters arising under the Evidence on Commission Act 1995, the provisions of this Part are subject to any directions given by a superior court under section 7 or 21 of that Act.

24.20 Witness expenses (cf DCR Part 25, rule 21)

A witness attending before an examiner to be examined, or to produce a document, is entitled to payment of the same amount for conduct money expenses and loss of time as he or she would have been entitled to on attending to give evidence, or to produce a document, at the trial of the proceedings before the court.

Part 25 Interim preservation

Division 1 General

pt 25, div 1, hdg: Ins 2006 (288), Sch 1 [7].

25.1 Application

(1)  This Part applies to proceedings in the Supreme Court, the Industrial Court, the Land and Environment Court or the District Court.

(2)  Divisions 2 and 3, but not this Division, also apply to proceedings in the Dust Diseases Tribunal.

rule 25.1: Am 2006 (288), Sch 1 [8]; 2008 (494), Sch 1 [7]; 2009 (570), Sch 1 [5].

25.2 Order in urgent case before commencement of proceedings (cf SCR Part 28, rule 1)

(1)  In an urgent case, the court, on the application of a person who intends to commence proceedings, may do any of the following:

(a)  it may make any order which the court might make in proceedings on an application for a writ of habeas corpus ad subjiciendum,

(b)  it may make any order for the custody of a minor,

(c)  it may grant any injunctive relief, including relief in the nature of a freezing order under Division 2 (Mareva relief) or a search order under Division 3 (an Anton Piller order),

(d)  it may make an order extending the operation of a caveat under:

(i)  the Real Property Act 1900, or

(ii)  the Offshore Minerals Act 1999, or

(iii)  the Offshore Minerals Act 1994 of the Commonwealth,

(e)  it may appoint a receiver,

(f)  it may make an order for the detention, custody or preservation of property under rule 25.3,

to the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings.

(2)  In relation to proceedings in the Supreme Court, an application under subrule (1) may be made in any division of the Court but must, so far as practicable, be made in the division to which the proceedings that are intended to be commenced would be assigned.

(3)  A person making an application under subrule (1) must give an undertaking to the court to the effect that the applicant will file originating process commencing the proceedings within such time as the court may order or, if the court makes no such order, within 48 hours after the application is granted.

rule 25.2: Am 2006 (288), Sch 1 [9].

25.3 Preservation of property (cf SCR Part 28, rule 2)

(1)  In proceedings concerning property, or in which any question may arise as to property, the court may make orders for the detention, custody or preservation of the property.

(2)  An order under subrule (1) may authorise any person to enter any land or to do any other thing for the purpose of giving effect to the order.

(3)  In proceedings concerning the right of any party to a fund, the court may order that the fund be paid into court or otherwise secured.

25.4 Disposal of personal property (cf SCR Part 28, rule 3)

If, in proceedings concerning property (other than land) or in which any question may arise as to any property (other than land), it appears to the court that:

(a)  the property is of a perishable nature or is likely to deteriorate, or

(b)  for any other reason it is desirable that the property should be sold or otherwise disposed of,

the court may make an order for the sale or other disposal of the whole or any part of the property by such person, and in such manner, as the court may direct.

25.5 Interim distribution (cf SCR Part 28, rule 4)

If, in proceedings concerning property, it appears to the court that the property is more than sufficient to answer the claims on the property for which provision ought to be made in the proceedings, the court may allow any part of the property to be conveyed, transferred or delivered to any person having an interest in the property.

25.6 Interim income (cf SCR Part 28, rule 5)

If, in proceedings concerning property, it appears to the court that the whole or any part of the income of the property is not required to answer the claims on the property or its income for which provision ought to be made in the proceedings, the court may allow that income or part to be paid, during such period as the court may determine, to all or any of the persons having an interest in the income.

25.7 Payment before ascertainment of all persons interested (cf SCR Part 28, rule 6)

If two or more persons are entitled to share in a fund, the court may order or allow immediate payment to any of those persons of his or her share without reserving any part of that share to meet the subsequent costs of ascertaining any other of those persons.

25.8 Meaning of “usual undertaking as to damages” (cf SCR Part 28, rule 7 (2))

The “usual undertaking as to damages”, if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking.

25.9 Orders may be made at any stage of proceedings (cf SCR Part 28, rule 7 (1))

Orders may be made under this Part at any stage of proceedings.

Division 2 Freezing orders

Note—

The provisions of this Division comprise uniform rules developed under the auspices of the Australian Council of Chief Justices.

pt 25, div 2: Ins 2006 (288), Sch 1 [10].

25.10 Interpretation (cf Federal Court Rules Order 25A, rule 1)

In this Division:

ancillary order has the meaning given by rule 25.12.

another court includes a court outside New South Wales, whether inside or outside Australia.

applicant means a person who applies for a freezing order or an ancillary order.

freezing order has the meaning given by rule 25.11.

respondent means a person against whom a freezing order or an ancillary order is sought or made.

Note 1—

The definition of judgment in the Federal Court Rules is not included above. The word is defined in section 3 of the Civil Procedure Act 2005 for the purposes of that Act and these rules.

Note 2—

In any notice of motion for a freezing order, a party should be referred to by the appropriate expression prescribed by rule 18.3.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.11 Freezing order (cf Federal Court Rules Order 25A, rule 2)

(1)  The court may make an order (a freezing order), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the court’s process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied.

(2)  A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.12 Ancillary order (cf Federal Court Rules Order 25A, rule 3)

(1)  The court may make an order (an ancillary order) ancillary to a freezing order or prospective freezing order as the court considers appropriate.

(2)  Without limiting the generality of subrule (1), an ancillary order may be made for either or both of the following purposes:

(a)  eliciting information relating to assets relevant to the freezing order or prospective freezing order,

(b)  determining whether the freezing order should be made.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.13 Respondent need not be party to proceeding (cf Federal Court Rules Order 25A, rule 4)

The court may make a freezing order or an ancillary order against a respondent even if the respondent is not a party to a proceeding in which substantive relief is sought against the respondent.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.14 Order against judgment debtor or prospective judgment debtor or third party (cf Federal Court Rules Order 25A, rule 5)

(1)  This rule applies if:

(a)  judgment has been given in favour of an applicant by:

(i)  the court, or

(ii)  in the case of a judgment to which subrule (2) applies—another court, or

(b)  an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in:

(i)  the court, or

(ii)  in the case of a cause of action to which subrule (3) applies—another court.

(2)  This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the court.

(3)  This subrule applies to a cause of action if:

(a)  there is a sufficient prospect that the other court will give judgment in favour of the applicant, and

(b)  there is a sufficient prospect that the judgment will be registered in or enforced by the court.

(4)  The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur:

(a)  the judgment debtor, prospective judgment debtor or another person absconds,

(b)  the assets of the judgment debtor, prospective judgment debtor or another person are:

(i)  removed from Australia or from a place inside or outside Australia, or

(ii)  disposed of, dealt with or diminished in value.

(5)  The court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the court is satisfied, having regard to all the circumstances, that:

(a)  there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because:

(i)  the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or

(ii)  the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor, or

(b)  a process in the court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.

(6)  Nothing in this rule affects the power of the court to make a freezing order or ancillary order if the court considers it is in the interests of justice to do so.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.15 Jurisdiction (cf Federal Court Rules Order 25A, rule 6)

Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the court to make a freezing order or ancillary order.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.16 Service outside Australia of application for freezing order or ancillary order (cf Federal Court Rules Order 25A, rule 7)

An application for a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia) if any of the assets to which the order relates are within the jurisdiction of the court.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.17 Costs (cf Federal Court Rules Order 25A, rule 8)

(1)  The court may make any order as to costs as it considers appropriate in relation to an order made under this Division.

(2)  Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a freezing order or ancillary order.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

Division 3 Search orders

Note—

The provisions of this Division comprise uniform rules developed under the auspices of the Australian Council of Chief Justices.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.18 Interpretation (cf Federal Court Rules Order 25B, rule 1)

In this Division:

applicant means an applicant for a search order.

described includes described generally whether by reference to a class or otherwise.

premises includes a vehicle or vessel of any kind.

respondent means a person against whom a search order is sought or made.

search order has the meaning given by rule 25.19.

Note—

In any notice of motion for a search order, a party should be referred to by the appropriate expression prescribed by rule 18.3.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.19 Search order (cf Federal Court Rules Order 25B, rule 2)

The court may make an order (a search order), in any proceeding or in anticipation of any proceeding in the court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence which is or may be relevant to an issue in the proceeding or anticipated proceeding.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.20 Requirements for grant of search order (cf Federal Court Rules Order 25B, rule 3)

The court may make a search order if the court is satisfied that:

(a)  an applicant seeking the order has a strong prima facie case on an accrued cause of action, and

(b)  the potential or actual loss or damage to the applicant will be serious if the search order is not made, and

(c)  there is sufficient evidence in relation to a respondent that:

(i)  the respondent possesses important evidentiary material, and

(ii)  there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the court.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.21 Jurisdiction (cf Federal Court Rules Order 25B, rule 4)

Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the court to make a search order.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.22 Terms of search order (cf Federal Court Rules Order 25B, rule 5)

(1)  A search order may direct each person who is named or described in the order:

(a)  to permit, or arrange to permit, such other persons as are named or described in the order:

(i)  to enter premises specified in the order, and

(ii)  to take any steps that are in accordance with the terms of the order, and

(b)  to provide, or arrange to provide, such other persons named or described in the order with any information, thing or service described in the order, and

(c)  to allow such other persons named or described in the order to take and retain in their custody any thing described in the order, and

(d)  not to disclose any information about the order, for up to 3 days after the date on which the order was served, except for the purposes of obtaining legal advice or legal representation, and

(e)  to do or refrain from doing any act as the court considers appropriate.

(2)  Without limiting the generality of subrule (1) (a) (ii), the steps that may be taken in relation to a thing specified in a search order include:

(a)  searching for, inspecting or removing the thing, and

(b)  making or obtaining a record of the thing or any information it may contain.

(3)  A search order may contain such other provisions as the court considers appropriate.

(4)  In subrule (2):

record includes a copy, photograph, film or sample.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.23 Independent solicitors (cf Federal Court Rules Order 25B, rule 6)

(1)  If the court makes a search order, the court must appoint one or more solicitors, each of whom is independent of the applicant’s solicitors (the independent solicitors), to supervise the execution of the order, and to do such other things in relation to the order as the court considers appropriate.

(2)  The court may appoint an independent solicitor to supervise execution of the order at any one or more premises, and a different independent solicitor or solicitors to supervise execution of the order at other premises, with each independent solicitor having power to do such other things in relation to the order as the court considers appropriate.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

25.24 Costs (cf Federal Court Rules Order 25B, rule 7)

(1)  The court may make any order as to costs that it considers appropriate in relation to an order made under this Division.

(2)  Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a search order.

pt 25, div 3 (rules 25.10–25.24): Ins 2006 (288), Sch 1 [10].

Part 26 Receivers

26.1 Application

This Part applies to proceedings in the Supreme Court.

26.2 Address for service (cf SCR Part 29, rule 1)

A receiver must, within 7 days after appointment as such, file a notice specifying an address for service.

26.3 Security (cf SCR Part 29, rule 2)

(1)  If the court appoints a receiver, the court may give directions for the filing by the receiver of security in accordance with this rule.

(2)  If the court directs the appointment of a receiver, then, unless the court orders otherwise, a person must not be appointed receiver under the direction until security has been filed in accordance with this rule.

(3)  Subrules (1) and (2) have effect subject to any provision for the time being in force made by or under any Act.

(4)  A security to be filed in accordance with this rule must be a security approved by the court that the receiver will account for what he or she receives as receiver and will deal with what he or she receives as the court may direct.

(5)  If a security has been filed under this rule, the court may make orders for the vacation of the security.

26.4 Remuneration (cf SCR Part 29, rule 3)

A receiver is to be allowed such remuneration (if any) as may be fixed by the court.

26.5 Accounts (cf SCR Part 29, rule 4)

(1)  A receiver must file accounts at such intervals or on such dates as the court may direct.

(2)  On the day on which he or she files an account, a receiver must file a notice of motion applying for an order to pass the account.

(3)  Unless the court orders otherwise, the receiver must attend on the hearing of the application under subrule (2).

26.6 Default (cf SCR Part 29, rule 5)

(1)  If a receiver fails to comply with a requirement of these rules, or of an order or direction of the court:

(a)  to file an account or affidavit, or

(b)  to attend on the hearing of an application for an order to pass an account, or

(c)  to do any other thing,

the court may make such orders and give such directions as the court thinks fit.

(2)  Without limiting subrule (1), the orders and directions that may be made or given include orders and directions:

(a)  for the discharge of the receiver, and

(b)  for the appointment of another receiver, and

(c)  for the payment of costs.

(3)  Without limiting subrule (1), if a receiver fails to comply with a requirement of these rules, or of an order or direction of the court, to pay into court any sum shown by an account as due from the receiver, the court may charge the receiver with interest on that sum, at the relevant rate set out in rule 36.7 (1) or such lesser rate as the court may determine, while that sum is in his or her possession as receiver.

(4)  This rule does not limit the powers of the court as to the enforcement of orders or as to the punishment of contempt.

rule 26.6: Am 2010 (172), Sch 1 [2].

26.7 Powers (cf SCR Part 29, rule 6)

(1)  The court may authorise a receiver to do (either in the name of the receiver or in the name of the parties or any of them, and either generally or in any particular case) any act or thing that the parties or any of them might do if of full age and capacity.

(2)  Subrule (1) has effect even if the parties or any of them are not of full age and capacity.

(3)  This rule does not limit any power of the court apart from this rule to authorise a receiver to do any act or thing.

26.8 Account on death (cf SCR Part 29, rule 7)

(1)  If a receiver in any proceedings dies, the court may make such orders as the court thinks fit for the filing and passing of accounts by the representatives of the deceased receiver and for the payment into court of any amount shown to be due.

(2)  The court must not make any order under subrule (1) unless notice of motion has been served on the representatives.

(3)  A notice of motion under this rule must be served personally.

Part 27 Disposal of land

27.1 Power to order sale (cf SCR Part 30, rule 2)

In proceedings in the Supreme Court in relation to land, other than proceedings in the Common Law Division for possession of land, the Court may, at any stage of the proceedings:

(a)  order that the whole or any part of the land be sold, and

(b)  order that any party in receipt of the rents or profits of the land, or otherwise in possession of the land, deliver possession to such person as the Court may direct.

27.2 Manner of sale (cf SCR Part 30, rule 3)

(1)  This rule applies if the Supreme Court makes an order under rule 27.1 that land be sold.

(2)  The Supreme Court may appoint a party or other person to have the conduct of the sale.

(3)  The Supreme Court may permit the person having the conduct of the sale to sell the land in such manner as he or she thinks fit.

(4)  The Supreme Court may direct any party to join in the sale and conveyance or transfer or in any other matter relating to the sale.

(5)  The Supreme Court may give such further directions as it thinks fit for the purpose of effecting the sale, including any one or more of the following:

(a)  a direction fixing the manner of sale (that is, whether sale is to be by contract conditional on approval of the Court, by private treaty, by public auction, by tender, or by some other manner),

(b)  a direction fixing a reserve or minimum price,

(c)  a direction requiring payment of the purchase money into Court or to trustees or other persons,

(d)  a direction for settling the particulars and conditions of sale,

(e)  a direction for obtaining evidence of value,

(f)  a direction fixing the remuneration to be allowed to any auctioneer, real estate agent or other person.

27.3 Certificate of sale (cf SCR Part 30, rule 4)

(1)  If, pursuant to this Part, land is sold by public auction, the auctioneer must, unless the Supreme Court orders otherwise, certify the result of the sale.

(2)  If, pursuant to this Part, land is sold otherwise than by public auction, the solicitor of the person having the conduct of the sale must, unless the Supreme Court orders otherwise, certify the result of the sale.

(3)  The Supreme Court may require that the certificate be verified by affidavit of the person certifying.

(4)  The person having the conduct of the sale must file the certificate and affidavit, if any.

27.4 Mortgage, exchange or partition (cf SCR Part 30, rule 5)

If the Supreme Court makes an order for the mortgage, exchange or partition of land, rules 27.2 and 27.3 apply to the mortgage, exchange or partition, so far as applicable and with any necessary modifications, in the same way as they apply to a sale of land under this Part.

Part 28 Separate decision of questions and consolidation

Division 1 Preliminary

28.1 Definition (cf SCR Part 31, rule 1)

In this Part, question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

Division 2 Separation of questions

28.2 Order for decision (cf SCR Part 31, rule 2)

The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.

28.3 Record of decision (cf SCR Part 31, rule 5)

If any question is decided under this Part, the court must, subject to rule 28.4, either:

(a)  cause the decision to be recorded, or

(b)  give or make such judgment or order as the nature of the case requires.

28.4 Disposal of proceedings (cf SCR Part 31, rule 6)

(1)  This rule applies if the decision of a question under this Division:

(a)  substantially disposes of the proceedings or of the whole or any part of any claim for relief in the proceedings, or

(b)  renders unnecessary any trial or further trial in the proceedings or on the whole or any part of any claim for relief in the proceedings.

(2)  In the circumstances referred to in subrule (1), the court may, as the nature of the case requires:

(a)  dismiss the proceedings or the whole or any part of any claim for relief in the proceedings, or

(b)  give any judgment, or

(c)  make any other order.

Division 3 Consolidation etc of proceedings

28.5 Consolidation etc of proceedings (cf SCR Part 31, rule 7; DCR Part 12, rule 7)

If several proceedings are pending in the court and it appears to the court:

(a)  that they involve a common question, or

(b)  that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or

(c)  that for some other reason it is desirable to make an order under this rule,

the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.

Note—

See also Division 5 of Part 6 with respect to joinder of causes of action and joinder of parties.

Part 29 Trials

29.1 Beginning and opposite parties (cf SCR Part 34, rule 1; DCR Part 26, rule 1A; LCR Part 21, rule 1A)

Subject to any directions given by the court, for the purposes of this Part:

(a)  if the burden of proof on any issue lies on the plaintiff, the plaintiff is to be the beginning party and the defendant the opposite party, and

(b)  if the burden of proof on all the issues lies on the defendant, the defendant is to be the beginning party and the plaintiff the opposite party.

29.2 Applications, elections and requisitions for jury (cf SCR Part 34, rule 3; DCR Part 12, rule 5)

(1) Applications generally Except as provided by subrule (3), an application for proceedings to be tried by jury must be made by notice of motion.

(2) Filing of requisitions for juries For the purposes of section 85 of the Supreme Court Act 1970 and section 76A of the District Court Act 1973, a requisition for a jury must be filed at the same time as the notice of motion referred to in subrule (1) is filed.

(3) Elections under section 21 of Defamation Act 2005 A party who intends to make an election under section 21 of the Defamation Act 2005 to have proceedings for defamation tried by jury (an election for trial by jury) must file a notice of intention to do so.

(4)  Unless the court otherwise orders, an election for trial by jury must be made, by means of an announcement in open court before a judicial officer, at the first hearing that takes place more than 3 days after service on the active parties of the notice of intention to make the election.

(4A)  A party who makes an election for trial by jury must, at the hearing referred to in subrule (4), produce to the court a copy of the notice of intention filed under subrule (3).

(5)  At a hearing referred to in subrule (4), any party may, without notice of motion having been filed or served, apply to the court for an order under section 21 (3) of the Defamation Act 2005 that the trial not be by jury and, if such an application is made, the court may determine the application on the day it is made or on any later day fixed by the court.

(6) Time for filing notice of motion or intention Unless the court otherwise orders, a notice of motion under subrule (1) or notice of intention under subrule (3) must be filed:

(a)  if the notice is filed by the plaintiff:

(i)  within 56 days after service on the defendant of the statement of claim, or

(ii)  if a defence is served on the plaintiff within that period, within 28 days after service of the defence on the plaintiff, or

(b)  if the notice is filed by the defendant:

(i)  within 28 days after service on the defendant of the statement of claim, or

(ii)  if, pursuant to rule 14.3, the court directs some other date for the filing of a defence, within 28 days after the date fixed by the court’s direction.

rule 29.2: Subst 2005 (807), Sch 1 [5]. Am 2009 (166), Sch 1 [7].

29.3 Time and place of trial (cf SCR Part 34, rule 4)

The court may make such order as it thinks fit for fixing the time and place of trial.

29.4 Trial to deal with all questions and issues (cf SCR Part 33, rule 4)

Unless the court orders otherwise, proceedings are to be listed for trial generally, that is, for hearing of all questions and issues arising on every claim for relief in the proceedings.

29.5 Conduct of trials generally (cf SCR Part 34, rule 6 (1))

The court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.

29.6 Order of evidence and addresses (cf SCR Part 34, rule 6; DCR Part 26, rule 6; LCR Part 21, rule 4)

(1)  Subject to these rules and to any direction of the court:

(a)  if the only parties are one plaintiff and one defendant, and there is no statement of cross-claim or cross-summons, the order of evidence and addresses is to be as provided by this rule, and

(b)  in any other case, the order of evidence and addresses is to be as provided by this rule, subject to any modifications that the nature of the case requires.

(2)  The beginning party may make an address opening his or her case and may then adduce evidence.

(3)  If, at the conclusion of the beginning party’s evidence, no document or thing has been admitted in evidence on tender by the opposite party, the opposite party may elect to adduce evidence or not to adduce evidence.

(4)  If the opposite party elects to adduce evidence:

(a)  the opposite party may make an opening address before adducing evidence, and

(b)  after adducing evidence, the opposite party may make an address closing his or her case, and

(c)  after the close of the opposite party’s case, the beginning party may make an address closing his or her case.

(5)  If the opposite party elects not to adduce evidence:

(a)  the beginning party may make an address closing his or her case, and

(b)  after the close of the beginning party’s case, the opposite party may make an address stating his or her case.

29.7 Procedure to be followed if party is absent (cf SCR Part 5, rule 9, Part 13, rule 5A, Part 34, rule 5; DCR Part 26, rule 5A; LCR Part 21, rule 2)

(1)  This rule applies when a trial is called on.

(2)  If any party is absent, the court:

(a)  may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or

(b)  may adjourn the trial.

(3)  If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of:

(a)  the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and

(b)  any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff’s claim or costs.

(4)  If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings.

(5)  Subrules (3) and (4) do not limit the court’s powers under subrule (2).

rule 29.7: Subst 2005 (717), Sch 1 [7].

29.8 Dismissal of proceedings on plaintiff’s application (cf SCR Part 34, rule 6A; DCR Part 26, rule 6A; LCR Part 21, rule 5 (1))

(1)  On the application of the plaintiff in any proceedings, the court may make an order for the dismissal of the proceedings to the extent to which they concern:

(a)  the whole or any part of the plaintiff’s claim for relief, and

(b)  any cause of action relevant to that claim or part of the claim.

(2)  Subject to subrule (3), such an order may be made at any time.

(3)  In the case of a trial with a jury, such an order may be made only if the application for the order is made before the jury gives a verdict.

29.9 Dismissal of proceedings on defendant’s application (cf SCR Part 34, rule 7; DCR Part 26, rule 7; LCR Part 21, rule 5 (2)–(7))

(1)  A defendant in proceedings in which the plaintiff is the beginning party may apply to the court for an order:

(a)  for the dismissal of the proceedings, or

(b)  for the dismissal of the proceedings to the extent to which they concern any cause of action relevant to the plaintiff’s claim for relief against that defendant,

on the ground that, on the evidence given, a judgment for the plaintiff could not be supported.

(2)  Such an application may be made at any time after the conclusion of the evidence for the plaintiff in his or her case in chief.

(3)  The plaintiff may argue, or decline to argue, the question raised by the application.

(4)  The court may not make an order under this rule unless the plaintiff argues the question raised by the application and the defendant satisfies the court that, on the evidence given, a judgment for the plaintiff could not be supported.

(5)  If the plaintiff declines to argue the question raised by the application, or if the defendant fails to satisfy the court that, on the evidence given, a judgment for the plaintiff could not be supported, the defendant:

(a)  may adduce evidence or further evidence, or

(b)  may make an application under rule 29.10.

(6)  If fewer than all defendants apply to the court under subrule (1), the court must not deal with any such application before the conclusion of the evidence given for all parties.

29.10 Judgment for want of evidence (cf SCR Part 34, rule 8; DCR Part 26, rule 8; LCR Part 21, rule 6)

(1)  An opposite party may apply to the court to give judgment for the opposite party, either generally or on any claim for relief in the proceedings, on the ground that, on the evidence given, a judgment for the beginning party could not be supported.

(2)  Such an application may be made at any time after the conclusion of the evidence for the beginning party in his or her case in chief.

(3)  The court may not give judgment under this rule unless the opposite party satisfies the court that, on the evidence given, a judgment for the beginning party could not be supported.

(4)  If the opposite party fails to satisfy the court that, on the evidence given, a judgment for the beginning party could not be supported, the opposite party may not adduce evidence or further evidence in the proceedings generally or on the claim for relief concerned, as the case may be, except by leave of the court.

(5)  If not all opposite parties apply to the court under subrule (1), the court must not deal with any such application before the conclusion of the evidence given for all parties.

29.11 Judgment despite verdict, finding or assessment (cf SCR Part 34, rule 8A)

If, at a trial with a jury, a verdict is given or a finding or assessment is made, the court may give judgment as it thinks fit despite the verdict, finding or assessment.

29.12 Death of party before judgment (cf SCR Part 34, rule 10)

(1)  If a party dies after the verdict or finding on the questions of fact, the court may give judgment, and judgment may be entered, despite the death.

(2)  Subrule (1) does not limit the court’s power to make orders for the joinder, removal or re-arrangement of parties under Part 6.

29.13 Record of trial to be kept (cf SCR Part 34, rule 9; DCR Part 26, rule 8A)

The associate, or other officer of the court present at the trial, is to maintain and complete a record of the trial.

29.14 Court may refuse to hear proceedings if fees unpaid (cf Supreme Court Regulation 2000 , clause 12; District Court Regulation 2000 , clause 9A)

The court may refuse to hear, or to continue to hear, proceedings in respect of which a hearing allocation fee or hearing fee remains due and unpaid.

rule 29.14: Am 2005 (395), Sch 1 [31].

29.15 Statement in open court about settled defamation proceedings (cf SCR Part 67, rule 21; DCR Part 49, rule 19)

With the leave of the court, a party to proceedings for defamation that have been settled may make in open court such statement about the proceedings as has been approved by the court in private.

rules 29.15, 29.16: Ins 2005 (807), Sch 1 [6].

29.16 Offers to make amends for defamatory publications: determination of questions (cf SCR Part 67, rule 22; DCR Part 49, rule 20)

The court may hear an application and determine any question under section 9F (2) of the Defamation Act 1974 or section 15 (3) of the Defamation Act 2005 in the absence of the public.

rules 29.15, 29.16: Ins 2005 (807), Sch 1 [6].

Part 30 Assessment of damages and value of goods

30.1 Damages under judgment (cf SCR Part 35, rule 1; DCR Part 11A, rule 2 (2); LCR Part 10A, rule 2 (2))

(1)  This rule applies to proceedings in which judgment against a party has been given for damages to be assessed.

(2)  Subject to subrule (3), the proceedings are to proceed to trial for assessment of damages.

(3)  If the proceedings are carried on against the party on any claim for relief not determined by the judgment, or against any other party, the trial for assessment of damages is to be held together with any other trial in the proceedings.

30.2 Value of goods under judgment (cf SCR Part 35, rule 2)

Rule 30.1 applies to proceedings in which judgment is given for the value of goods to be assessed (with or without damages to be assessed) in the same way as it applies to a judgment for damages to be assessed.

30.3 Damages to time of assessment (cf SCR Part 35, rule 3; DCR Part 27, rule 2, LCR Part 22, rule 2)

(1)  If damages are to be assessed in respect of:

(a)  a continuing cause of action, or

(b)  repeated breaches of recurring obligations, or

(c)  intermittent breaches of a continuing obligation,

the damages are to be assessed up to the time of assessment, including damages for breaches occurring after the commencement of the proceedings.

(2)  Subrule (1) applies to the assessment of damages under this Part or otherwise.

Part 31 Evidence

Division 1 Evidence at hearing

31.1 Manner of giving evidence at trial (cf SCR Part 36, rule 2; DCR Part 28, rule 2; LCR Part 25, rule 9)

(1)  This rule applies to a trial of proceedings commenced by statement of claim, or in which a statement of claim has been filed.

(2)  Subject to subrules (3), (4) and (5) and to the provisions of the Evidence Act 1995, a witness’s evidence at a trial must be given orally before the court.

(3)  The court may order that all or any of a witness’s evidence at a trial must be given by affidavit or, subject to rule 31.4, by witness statement.

(4)  Unless the court orders otherwise, evidence of facts must be given by affidavit if the only matters in question are:

(a)  interest up to judgment in respect of a debt or liquidated claim, or

(b)  the assessment of damages or the value of goods under Part 30, or

(c)  costs.

(5)  Unless the court otherwise orders, at any trial on an assessment of the amount to be recovered by a plaintiff after default judgment has been given, the following evidence may be given by affidavit:

(a)  evidence of the identity of any motor vehicle,

(b)  evidence of the damage sustained by a motor vehicle in a particular collision,

(c)  evidence of the reasonable cost of repairing that damage.

rule 31.1: Am 2005 (395), Sch 1 [32] [33].

31.2 Evidence of witnesses at other hearings (cf SCR Part 36, rule 3; DCR Part 28, rule 3)

Subject to rule 31.1, evidence in chief of any witness at any hearing must be given by affidavit unless the court orders otherwise.

rule 31.2: Am 2005 (717), Sch 1 [8].

31.3 Evidence by telephone, video link or other communication (cf SCR Part 36, rule 2A; DCR Part 28, rule 2A; LCR Part 23, rule 1C)

(1)  If the court so orders, evidence and submissions may be received by telephone, video link or other form of communication.

(2)  This rule does not apply to circumstances in which directions could be sought under section 25 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth.

31.4 Court may direct party to furnish witness statement (cf SCR Part 36, rule 4A)

(1)  The court may direct any party to serve on each other active party a written statement of the oral evidence that the party intends to adduce in chief on any questions of fact to be decided at any hearing (a witness statement).

(2)  A direction under subrule (1):

(a)  may make different provision with regard to different questions of fact or different witnesses, and

(b)  may require that notice be given of any objection to any of the evidence in a witness statement and of the grounds of any such objection.

(3)  Each witness statement must be signed by the intended witness unless the signature of the witness cannot be procured or the court orders otherwise.

(4)  If an intended witness to whose evidence a witness statement relates does not give evidence, no party may put the statement in evidence at the hearing except by leave of the court.

(5)  If the party serving the statement calls as a witness at the hearing any person whose witness statement has been served pursuant to a direction under subrule (1):

(a)  that person’s witness statement is to stand as the whole of his or her evidence in chief, so long as that person testifies to the truth of the statement, and

(b)  except by leave of the court, the party may not adduce from that person any further evidence in chief.

(6)  A party who fails to comply with a direction given under this rule may not adduce evidence to which the direction relates, except by leave of the court.

(7)  This rule does not deprive any party of the right to treat any communication as privileged and does not make admissible any evidence that is otherwise inadmissible.

(8)  An application by a party for an order that the party not be required to comply with a direction under this rule in respect of any proposed witness or witnesses (whether or not such a direction has been given) may be made without serving notice of motion.

31.5 Notice under s 67 or s 99 of the Evidence Act 1995 (cf SCR Part 36, rule 13D; DCR Part 28, rule 9A; LCR Part 23, rule 3A)

Unless the court orders otherwise, notice for the purposes of section 67 or 99 of the Evidence Act 1995 must be given:

(a)  in any case where the court by notice to the parties fixes a date for determining the date for hearing, not later than 21 days before the date fixed by that notice, and

(b)  in any other case where the place of hearing is a place other than Sydney, not later than 21 days before the first call-over held in respect of the sittings at that place, and

(c)  in any other case, not later than 21 days before the date on which the court determines the date for hearing.

31.6 Evidence on commission (cf SCR Part 36, rule 6; DCR Part 28, rule 7)

(1)  The court may permit a party to any proceedings the subject of an order under rule 24.3 (relating to the taking of evidence otherwise than at trial) to tender in the proceedings the evidence of a person examined under the order.

(2)  The evidence is not admissible in the proceedings if:

(a)  it appears to the satisfaction of the court that the person examined is in New South Wales and is able to attend the hearing, or

(b)  the evidence would not have been admissible had it been given orally at the hearing of the proceedings.

(3)  If it is in the interests of justice to do so, the court may exclude from the proceedings any evidence of the person examined even though the evidence is otherwise admissible.

(4)  Unless the court orders otherwise, evidence in any proceedings that a case falls within:

(a)  subrule (2) (a), or

(b)  section 8 (2) (a) or 22 (2) (a) of the Evidence on Commission Act 1995, or

(c)  section 9 (2) (a) of the Foreign Evidence Act 1994 of the Commonwealth,

may be given by affidavit on information and belief, but the person making the affidavit must give the source of and ground for the information and belief.

(5)  The judicial officer presiding at the trial may make any necessary observations and findings as to demeanour and credibility of the person examined, and act on them for the determination of the issues at the trial, if:

(a)  the examination has been conducted by the same judicial officer, or

(b)  an audio-visual recording under rule 24.13 is tendered in evidence at the trial,

except where the trial is before a jury.

(6)  In this rule, evidence includes:

(a)  any document or thing produced at the examination, and

(b)  any answers made (whether in writing, or orally and reduced to writing) to any written interrogatories presented at the examination, and

(c)  any audio-visual recording made in accordance with rule 24.13.

31.7 Foreign material (cf SCR Part 36, rule 6B)

(1)  Unless the court orders otherwise, a party who adduces foreign material under section 24 or 32 of the Foreign Evidence Act 1994 of the Commonwealth as evidence:

(a)  must give at least 14 days’ written notice to each other active party of:

(i)  the intention to adduce evidence under that section, and

(ii)  the nature of the foreign material, and

(b)  must adduce all relevant evidence available to that party:

(i)  as to whether the person who gave the testimony that is the subject of the foreign material is in Australia and is able to attend the hearing, and

(ii)  if the foreign material is adduced under section 24 of the Foreign Evidence Act 1994 of the Commonwealth, of the matters to which section 25 (2) (a) or (c) of that Act refer, and

(iii)  if the foreign material is adduced under section 32 of the Foreign Evidence Act 1994 of the Commonwealth, of the matters to which section 33 (2) (a) or (c) of that Act refer.

(2)  In this rule foreign material has the same meaning as it has in the Foreign Evidence Act 1994 of the Commonwealth.

31.8 Earlier evidence in the same proceedings (cf SCR Part 36, rule 5; DCR Part 28, rule 6)

(1)  Evidence taken at a trial with respect to a question that is ordered to be tried separately may be used in any subsequent trial in the same proceedings, saving all just exceptions and unless the court orders otherwise.

(2)  Evidence taken at a trial may be used for any subsequent trial for the assessment of damages or of the value of goods in the same proceedings, saving all just exceptions and unless the court orders otherwise.

(3)  Subject to subrules (1) and (2), evidence taken at a hearing may not be used as evidence in any subsequent hearing in the same proceedings except by leave of the court.

31.9 Earlier evidence in other proceedings (cf SCR Part 36, rule 7; DCR Part 28, rule 10)

(1)  In any proceedings, evidence taken, or an affidavit filed, in other proceedings may not be used as evidence, saving all just exceptions and unless the court orders otherwise.

(2)  Leave may not be granted under subrule (1) except to allow the evidence taken, or affidavit filed, in the other proceedings to be used in relation to the proof of particular facts.

31.10 Plans, photographs and models (cf SCR Part 14, rule 2, Part 36, rule 8; DCR Part 28, rule 11; LCR Part 23, rule 4)

(1)  At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof.

(2)  A party who fails to comply with subrule (1) may not tender the plan, photograph or model in evidence except by leave of the court.

(3)  This rule does not apply to any proceedings entered, or intended to be entered, in:

(a)  the Commercial List or the Technology and Construction List in the Supreme Court, or

(b)  the Commercial List or the Construction List in the District Court.

rule 31.10: Am 2006 (391), Sch 1 [6] [7].

31.11 Production of court documents (cf SCR Part 36, rule 10; DCR Part 28, rule 13; LCR Part 23, rule 6)

Unless the court orders otherwise, the registrar must produce to the court any document in the registrar’s custody that, by notice in writing, any party to proceedings requests the registrar to produce to the court for the purposes of the proceedings.

31.12 Proof of court documents (cf SCR Part 36, rule 9; DCR Part 28, rule 12; LCR Part 23, rule 5)

A document purporting to be marked with the seal of any court or tribunal is admissible in evidence without further proof.

31.13 Unstamped documents: arrangements under section 304 of the Duties Act 1997 (cf SCR Part 36, rule 10B)

(1)  The “usual undertaking by person liable” if given to the court by a party in relation to an instrument referred to in section 304 (2) of the Duties Act 1997 is an undertaking that the party will, within a time specified by the court, transmit the instrument to the Chief Commissioner of State Revenue.

(2)  The “usual undertaking by person not liable” if given to the court by a party in relation to an instrument referred to in section 304 (2) of the Duties Act 1997 is an undertaking that the party will, within a time specified by the court, forward to the Chief Commissioner of State Revenue the name and address of the person liable to pay duty on the instrument under that Act together with the instrument.

31.14 Unstamped documents: undertaking in respect of section 29 of the Stamp Duties Act 1920 (cf SCR Part 36, rule 10A; DCR Part 28, rule 13A)

(1)  The “solicitor’s usual undertaking as to stamp duty”, if given to the court by a solicitor in relation to an instrument referred to in section 29 of the Stamp Duties Act 1920, or an unexecuted copy referred to in that section, is an undertaking that the solicitor will cause the instrument or copy to be presented to the Chief Commissioner of State Revenue for assessment in accordance with that Act and cause any duty and fine to which the instrument or copy is liable to be paid.

(2)  The “party’s usual undertaking as to stamp duty”, if given to the court by a party in relation to an instrument referred to in section 29 (4) of the Stamp Duties Act 1920, is an undertaking that the party will, within 28 days, inform the Chief Commissioner of State Revenue of the name of the person primarily liable to duty in respect of the instrument and lodge the instrument or a copy of the instrument with the Chief Commissioner.

31.15 Evidence of consent to act as tutor, trustee, receiver or other office (cf SCR Part 36, rule 11)

(1)  A document:

(a)  purporting to contain a person’s written consent to act as tutor of a person under legal incapacity, to act as trustee, to act as receiver or to act in any other office on appointment by the court, and

(b)  purporting to have been duly executed and authenticated,

is evidence of the consent.

(2)  A document is duly executed and authenticated for the purposes of subrule (1):

(a)  in the case of a consenting person who is a natural person, if the document is signed by the consenting person and the signature is verified by some other person, or

(b)  in the case of a consenting person that is a corporation, if the seal of the corporation is affixed to the document in accordance with the law regulating the use of the seal.

31.16 Evidence of published research concerning maintenance of children (cf SCR Part 36, rule 13E)

If the proper needs of a minor are relevant, the court may have regard, to the extent to which it considers appropriate, to any relevant findings of published research in relation to the maintenance of minors.

31.16A Return of exhibits (cf SCR Part 75, rule 3I)

Where proceedings have been concluded and:

(a)  4 months have expired since the conclusion, and

(b)  there is no undisposed of appeal, or application for leave to appeal, in respect of the proceedings,

the registrar may, unless the court otherwise orders, return any exhibit in the proceedings still in the custody of the registrar by forwarding it to the party from whom it was received.

rule 31.16A: Ins 2008 (494), Sch 1 [8].

Division 2 Provisions applicable to expert evidence generally

Note—

The provisions of this Division replace those of former Divisions 2 and 3, as in force immediately before 8 December 2006. The numbering of the individual provisions of this Division varies considerably from that of the provisions of the former Divisions. The following Table identifies the new rules corresponding to former rules 31.17–31.35.

Table

Former rule	New rule
Rule 31.17	Rule 31.18
Rule 31.18	Rule 31.28
Rule 31.18A	Rule 31.29
Rule 31.19	Rule 31.30
Rule 31.20	Rule 31.31
Rule 31.21	Rule 31.32
Rule 31.22	Rule 31.33
Rule 31.23	Rule 31.27
Rule 31.24	Rule 31.34
Rule 31.25	Rules 31.24 and 31.26
Rule 31.26	Rule 31.35
Rule 31.27	Rule 31.36
Rule 31.28	Rule 31.18
Rule 31.29	Rule 31.46
Rule 31.30	Rule 31.23
Rule 31.31	Rule 31.49
Rule 31.32	Rule 31.51
Rule 31.33	Rule 31.52
Rule 31.34	Rule 31.53
Rule 31.35	Rule 31.54

pt 31, div 2: Subst 2006 (717), Sch 1 [1].

Subdivision 1 Preliminary

pt 31, div 2, sdiv 1, hdg: Ins 2006 (717), Sch 1 [1].

31.17 Main purposes of Division (cf Queensland Uniform Civil Procedure Rules 1999 , rule 423; United Kingdom Civil Procedure Rules 1998 , rule 35.1)

The main purposes of this Division are as follows:

(a)  to ensure that the court has control over the giving of expert evidence,

(b)  to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,

(c)  to avoid unnecessary costs associated with parties to proceedings retaining different experts,

(d)  if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,

(e)  if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,

(f)  to declare the duty of an expert witness in relation to the court and the parties to proceedings.

rules 31.17, 31.18: Subst 2006 (717), Sch 1 [1].

31.18 Definitions (cf SCR Part 36, rules 13A and 13C; DCR Part 28, rule 8; LCR Part 23, rule 1D)

In this Division:

court-appointed expert means an expert appointed pursuant to rule 31.46.

expert, in relation to any issue, means a person who has such knowledge or experience of, or in connection with, that issue, or issues of the character of that issue, that his or her opinion on that issue would be admissible in evidence.

expert witness means an expert engaged or appointed for the purpose of:

(a)  providing an expert’s report for use as evidence in proceedings or proposed proceedings, or

(b)  giving opinion evidence in proceedings or proposed proceedings.

expert’s report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert’s opinion and the facts, and assumptions of fact, on which the opinion is based.

hospital report means a written statement concerning a patient, made by or on behalf of a hospital, that the party serving the statement intends to adduce in evidence in chief at the trial.

parties’ single expert means an expert engaged pursuant to rule 31.37.

rules 31.17, 31.18: Subst 2006 (717), Sch 1 [1].

rule 31.18A: Ins 2005 (395), Sch 1 [34]. Rep 2006 (717), Sch 1 [1].

Subdivision 2 Expert witnesses generally

pt 31, div 2, sdiv 2, hdg: Ins 2006 (717), Sch 1 [1].

31.19 Parties to seek directions before calling expert witnesses

(1)  Any party:

(a)  intending to adduce expert evidence at trial, or

(b)  to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2)  Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3)  Unless the court otherwise orders, expert evidence may not be adduced at trial:

(a)  unless directions have been sought in accordance with this rule, and

(b)  if any such directions have been given by the court, otherwise than in accordance with those directions.

(4)  This rule does not apply to proceedings with respect to a professional negligence claim.

rule 31.19: Am 2005 (395), Sch 1 [35]–[37]. Subst 2006 (717), Sch 1 [1]. Am 2007 (327), Sch 1 [5].

31.20 Court may give directions regarding expert witnesses

(1)  Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings.

(2)  Directions under this rule may include any of the following:

(a)  a direction as to the time for service of experts’ reports,

(b)  a direction that expert evidence may not be adduced on a specified issue,

(c)  a direction that expert evidence may not be adduced on a specified issue except by leave of the court,

(d)  a direction that expert evidence may be adduced on specified issues only,

(e)  a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue,

(f)  a direction providing for the engagement and instruction of a parties’ single expert in relation to a specified issue,

(g)  a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue,

(h)  a direction requiring experts in relation to the same issue to confer, either before or after preparing experts’ reports in relation to a specified issue,

(i)  any other direction that may assist an expert in the exercise of the expert’s functions,

(j)  a direction that an expert who has prepared more than one expert’s report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.

rules 31.20–31.26: Subst 2006 (717), Sch 1 [1].

31.21 Expert evidence in chief to be given by way of experts’ reports

Unless the court otherwise orders, an expert witness’s evidence in chief must be given by the tender of one or more expert’s reports.

rules 31.20–31.26: Subst 2006 (717), Sch 1 [1].

31.22 Expert witness to provide details of contingency fees or deferred payment schemes

(1)  A person who is engaged as an expert witness in relation to any proceedings must include information as to any arrangements under which:

(a)  the charging of fees or costs by the expert witness is contingent on the outcome of the proceedings, or

(b)  the payment of any fees or costs to the expert witness is to be deferred,

in, or in an annexure to, any report that he or she prepares for the purposes of the proceedings.

(2)  If a report referred to in subrule (1) indicates the existence of any such arrangements, the court may direct disclosure of the terms of the engagement (including as to fees and costs).

rules 31.20–31.26: Subst 2006 (717), Sch 1 [1].

31.23 Code of conduct (cf SCR Part 39, rule 2; DCR Part 28A, rule 2; LCR Part 38B, rule 2)

(1)  An expert witness must comply with the code of conduct set out in Schedule 7.

(2)  As soon as practicable after an expert witness is engaged or appointed:

(a)  in the case of an expert witness engaged by one or more parties, the engaging parties, or one of them as they may agree, or

(b)  in the case of an expert witness appointed by the court, such of the affected parties as the court may direct,

must provide the expert witness with a copy of the code of conduct.

(3)  Unless the court otherwise orders, an expert’s report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.

(4)  Unless the court otherwise orders, oral evidence may not be received from an expert witness unless the court is satisfied that the expert witness has acknowledged, whether in an expert’s report prepared in relation to the proceedings or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.

rules 31.20–31.26: Subst 2006 (717), Sch 1 [1].

31.24 Conference between expert witnesses (cf SCR Part 36, rule 13CA; DCR Part 28, rule 9D; LCR Part 23, rule 1E)

(1)  The court may direct expert witnesses:

(a)  to confer, either generally or in relation to specified matters, and

(b)  to endeavour to reach agreement on any matters in issue, and

(c)  to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and

(d)  to base any joint report on specified facts or assumptions of fact,

and may do so at any time, whether before or after the expert witnesses have furnished their experts’ reports.

(2)  The court may direct that a conference be held:

(a)  with or without the attendance of the parties affected or their legal representatives, or

(b)  with or without the attendance of the parties affected or their legal representatives, at the option of the parties, or

(c)  with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue).

(3)  An expert witness so directed may apply to the court for further directions to assist the expert witness in the performance of his or her functions in any respect.

(4)  Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.

(5)  An expert witness who makes such an application must send a copy of the request to the other expert witnesses and to the parties affected.

(6)  Unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing.

rules 31.20–31.26: Subst 2006 (717), Sch 1 [1].

31.25 Instructions to expert witnesses where conference ordered before report furnished

If a direction to confer is given under rule 31.24 (1) (a) before the expert witnesses have furnished their reports, the court may give directions as to:

(a)  the issues to be dealt with in a joint report by the expert witnesses, and

(b)  the facts, and assumptions of fact, on which the report is to be based,

including a direction that the parties affected must endeavour to agree on the instructions to be provided to the expert witnesses.

rules 31.20–31.26: Subst 2006 (717), Sch 1 [1].

31.26 Joint report arising from conference between expert witnesses (cf SCR Part 36, rule 13CA; DCR Part 28, rule 9D; LCR Part 23, rule 1E)

(1)  This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1) (c).

(2)  The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement.

(3)  The joint report may be tendered at the trial as evidence of any matters agreed.

(4)  In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.

(5)  Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report.

rules 31.20–31.26: Subst 2006 (717), Sch 1 [1].

Subdivision 3 Experts’ reports and expert evidence

pt 31, div 2, sdiv 3, hdg: Ins 2006 (717), Sch 1 [1].

31.27 Experts’ reports (cf SCR Part 36, rule 13C; DCR Part 28, rule 9C; LCR Part 23, rule 1D)

(1)  An expert’s report must (in the body of the report or in an annexure to it) include the following:

(a)  the expert’s qualifications as an expert on the issue the subject of the report,

(b)  the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),

(c)  the expert’s reasons for each opinion expressed,

(d)  if applicable, that a particular issue falls outside the expert’s field of expertise,

(e)  any literature or other materials utilised in support of the opinions,

(f)  any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,

(g)  in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).

(2)  If an expert witness who prepares an expert’s report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report.

(3)  If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.

(4)  If an expert witness changes his or her opinion on a material matter after providing an expert’s report to the party engaging him or her (or that party’s legal representative), the expert witness must forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect containing such of the information referred to in subrule (1) as is appropriate.

rule 31.27: Subst 2006 (717), Sch 1 [1].

31.28 Disclosure of experts’ reports and hospital reports (cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3)

(1)  Each party must serve experts’ reports and hospital reports on each other active party:

(a)  in accordance with any order of the court, or

(b)  if no such order is in force, in accordance with any relevant practice note, or

(c)  if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2)  An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.

(3)  Except by leave of the court, or by consent of the parties:

(a)  an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and

(b)  without limiting paragraph (a), an expert’s report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and

(c)  the oral expert evidence in chief of any expert is not admissible unless an expert’s report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

(4)  Leave is not to be given as referred to in subrule (3) unless the court is satisfied:

(a)  that there are exceptional circumstances that warrant the granting of leave, or

(b)  that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).

rules 31.28, 31.29: Ins 2006 (717), Sch 1 [1].

31.29 Admissibility of expert’s report (cf SCR Part 36, rule 13B)

(1)  If an expert’s report is served in accordance with rule 31.28 or in accordance with an order of the court, the report is admissible:

(a)  as evidence of the expert’s opinion, and

(b)  if the expert’s direct oral evidence of a fact on which the opinion was based would be admissible, as evidence of that fact,

without further evidence, oral or otherwise.

(2)  Unless the court otherwise orders, a party may require the attendance for cross-examination of the expert by whom the report was prepared by notice served on the party by whom the report was served.

(3)  Unless the court otherwise orders, such a requirement may not be made later than:

(a)  in the case of proceedings for which the court has fixed a date for trial, 35 days before the date so fixed, or

(b)  in any other case, 7 days before the date on which the court fixes a date for trial.

(4)  The parties may not by consent abridge the time fixed by or under subrule (3).

(5)  If the expert’s attendance for cross-examination is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it.

(6)  The party using the report may re-examine the expert if the expert attends for cross-examination pursuant to a requirement under subrule (2).

(7)  This rule does not apply to proceedings in the District Court or the Local Court or to proceedings on a trial with a jury.

rules 31.28, 31.29: Ins 2006 (717), Sch 1 [1].

31.30 Admissibility of expert’s report in District Court and Local Court (cf DCR Part 28, rule 9; LCR Part 23, rule 2)

(1)  This rule applies to proceedings in the District Court or the Local Court.

(2)  If an expert’s report is served in accordance with rule 31.28 or in accordance with an order of the court, the report is admissible:

(a)  as evidence of the expert’s opinion, and

(b)  if the expert’s direct oral evidence of a fact on which the opinion was based would be admissible, as evidence of that fact,

without further evidence, oral or otherwise.

(3)  Unless the court orders otherwise:

(a)  it is the responsibility of the party requiring the attendance for cross-examination of the expert by whom an expert’s report has been prepared to procure that attendance, and

(b)  the party requiring the expert’s attendance must notify the expert at least 28 days before the date on which attendance is required.

(4)  Except for the purpose of determining any liability for conduct money or witness expenses, an expert does not become the witness for the party requiring his or her attendance merely because his or her attendance at court has been procured by that party.

(5)  A party who requires the attendance of a person as referred to in subrule (2):

(a)  must inform all other parties to the proceedings that the party has done so at least 28 days before the date fixed for hearing, and

(b)  must pay to the person whose attendance is required (whether before or after the attendance) an amount sufficient to meet the person’s reasonable expenses (including any standby fees) in complying with the requirement.

(6)  If the attendance of an expert is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it.

(7)  The party using an expert’s report may re-examine an expert who attends for cross-examination under a requirement under subrule (2).

(8)  This rule does not apply to proceedings on a trial with a jury.

rule 31.30: Ins 2006 (717), Sch 1 [1]. Am 2007 (579), Sch 2 [4].

31.31 Fees for medical expert for compliance with subpoena (cf SCR Part 36, rule 13BA)

(1)  If a subpoena is served on a medical expert who is to give evidence of medical matters but is not called as a witness, the expert is, unless the court orders otherwise, entitled to be paid, in addition to any other amount payable to the expert, the amount specified in item 2 of Schedule 3.

(2)  The amount payable under subrule (1) must be paid to the expert by the issuing party within 28 days after the date for the expert’s attendance.

(3)  A party that requires an expert’s attendance under rule 31.29 (2), but subsequently revokes it, must pay to the issuing party any amount paid by the issuing party under subrule (2), but otherwise such an amount is not recoverable by the issuing party from any other party unless the court so orders.

(4)  In this rule, issuing party means the party at whose request a subpoena is issued.

rules 31.31–31.35: Ins 2006 (717), Sch 1 [1].

31.32 Service of subpoena on medical expert (cf SCR Part 36, rule 13BB)

(1)  Service of a subpoena on a medical expert may be effected, at any place at which the expert’s practice is carried on, by handing it over to a person who is apparently engaged in the practice (whether as an employee or otherwise) and is apparently of or above the age of 16 years.

(2)  If a person refuses to accept a subpoena when it is handed over, the subpoena may be served by putting it down in the person’s presence after he or she has been told of its nature.

(3)  If a subpoena requires a medical expert to attend court on a specified date for the purpose of giving evidence on medical matters, it must be served on the expert not later than 21 days before the date so specified unless the court orders otherwise.

(4)  The parties may not by consent abridge the time fixed by or under subrule (3).

rules 31.31–31.35: Ins 2006 (717), Sch 1 [1].

31.33 Subpoena requiring production of medical records (cf SCR Part 36, rule 13BC)

(1)  A subpoena for production may require a medical expert to produce medical records or copies of them.

(2)  A person is not required to comply with a subpoena for production referred to in subrule (1) unless the amount specified in item 3 of Schedule 3 is paid or tendered to the person at the time of service of the subpoena or a reasonable time before the date on which production is required.

(3)  Rule 33.6 (Compliance with subpoena) does not apply to a subpoena to which subrule (1) applies.

(4)  Rule 33.7 (Production otherwise than on attendance) applies to the photocopies in the same way as it applies to the records.

(5)  If, after service of a subpoena for production referred to in subrule (1), the party who requested the issue of the subpoena requires production of the original medical records without the option of producing copies of them, the party must request the issue of, and serve, another subpoena requiring production of the original medical records.

rules 31.31–31.35: Ins 2006 (717), Sch 1 [1].

31.34 Supplementary reports by expert witness (cf SCR Part 36, rule 13C; DCR Part 28, rule 9C; LCR Part 23, rule 1D)

(1)  If an expert witness provides a supplementary report to the party by whom he or she has been engaged, neither the engaging party nor any other party having the same interest as the engaging party may use:

(a)  the supplementary report, or

(b)  any earlier report affected by the supplementary report,

unless all of those reports have been served on all parties affected.

(2)  For the purposes of this rule, supplementary report, in relation to an earlier report provided by an expert witness, includes any report by the expert witness that indicates that he or she has changed his or her opinion on a material matter expressed in the earlier report.

(3)  This rule does not apply to a report prepared by a court-appointed expert.

rules 31.31–31.35: Ins 2006 (717), Sch 1 [1].

31.35 Opinion evidence by expert witnesses (cf Federal Court Rules , Order 34A, rule 3)

In any proceedings in which two or more parties call expert witnesses to give opinion evidence about the same issue or similar issues, or indicate to the court an intention to call expert witnesses for that purpose, the court may give any one or more of the following directions:

(a)  a direction that, at trial:

(i)  the expert witnesses give evidence after all factual evidence relevant to the issue or issues concerned, or such evidence as may be specified by the court, has been adduced, or

(ii)  the expert witnesses give evidence at any stage of the trial, whether before or after the plaintiff has closed his or her case, or

(iii)  each party intending to call one or more expert witnesses close that party’s case in relation to the issue or issues concerned, subject only to adducing evidence of the expert witnesses later in the trial,

(b)  a direction that, after all factual evidence relevant to the issue, or such evidence as may be specified by the court, has been adduced, each expert witness file an affidavit or statement indicating:

(i)  whether the expert witness adheres to any opinion earlier given, or

(ii)  whether, in the light of any such evidence, the expert witness wishes to modify any opinion earlier given,

(c)  a direction that the expert witnesses:

(i)  be sworn one immediately after another (so as to be capable of making statements, and being examined and cross-examined, in accordance with paragraphs (d), (e), (f), (g) and (h)), and

(ii)  when giving evidence, occupy a position in the courtroom (not necessarily the witness box) that is appropriate to the giving of evidence,

(d)  a direction that each expert witness give an oral exposition of his or her opinion, or opinions, on the issue or issues concerned,

(e)  a direction that each expert witness give his or her opinion about the opinion or opinions given by another expert witness,

(f)  a direction that each expert witness be cross-examined in a particular manner or sequence,

(g)  a direction that cross-examination or re-examination of the expert witnesses giving evidence in the circumstances referred to in paragraph (c) be conducted:

(i)  by completing the cross-examination or re-examination of one expert witness before starting the cross-examination or re-examination of another, or

(ii)  by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time, until the cross-examination or re-examination of all of the expert witnesses is complete,

(h)  a direction that any expert witness giving evidence in the circumstances referred to in paragraph (c) be permitted to ask questions of any other expert witness together with whom he or she is giving evidence as so referred to,

(i)  such other directions as to the giving of evidence in the circumstances referred to in paragraph (c) as the court thinks fit.

rules 31.31–31.35: Ins 2006 (717), Sch 1 [1].

31.36 Service of experts’ reports in professional negligence claims (cf SCR Part 14C, rules 1 and 6; DCR Part 28, rule 9B)

(1)  Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert’s report that includes an opinion supporting:

(a)  the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and

(b)  the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and

(c)  the causal relationship alleged between such breach of duty or obligation and the damage alleged.

(2)  In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert’s report or experts’ reports supporting the claim.

(3)  If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.

(4)  Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial.

(5)  Directions under subrule (4) may be sought at any directions hearing or case management conference or by notice of motion.

(6)  Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence:

(a)  has been filed and served under subrule (1) or (2), or

(b)  has been served pursuant to directions given under subrule (4).

rule 31.36: Ins 2006 (717), Sch 1 [1]. Am 2007 (327), Sch 1 [6].

Subdivision 4 Parties’ single experts

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.37 Selection and engagement

(1)  If an issue for an expert arises in any proceedings, the court may, at any stage of the proceedings, order that an expert be engaged jointly by the parties affected.

(2)  A parties’ single expert is to be selected by agreement between the parties affected or, failing agreement, by, or in accordance with the directions of, the court.

(3)  A person may not be engaged as a parties’ single expert unless he or she consents to the engagement.

(4)  If any party affected knows that a person is under consideration for engagement as a parties’ single expert:

(a)  the party affected must not, prior to the engagement, communicate with the person for the purpose of eliciting the person’s opinion as to the issue or issues concerned, and

(b)  if the party affected has previously communicated with the person for that purpose, he or she must notify the other parties affected as to the substance of those communications.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.38 Instructions to parties’ single expert

(1)  The parties affected must endeavour to agree on written instructions to be provided to the parties’ single expert concerning the issues arising for the expert’s opinion and concerning the facts, and assumptions of fact, on which the report is to be based.

(2)  If the parties affected cannot so agree, they must seek directions from the court.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.39 Parties’ single expert may apply to court for directions

(1)  The parties’ single expert may apply to the court for directions to assist the expert in the performance of the expert’s functions in any respect.

(2)  Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.

(3)  A parties’ single expert who makes such an application must send a copy of the request to the parties affected.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.40 Parties’ single expert’s report to be sent to parties

(1)  The parties’ single expert must send a signed copy of his or her report to each of the parties affected.

(2)  Each copy must be sent on the same day and must be endorsed with the date on which it is sent.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.41 Parties may seek clarification of report

(1)  Within 14 days after the parties’ single expert’s report is sent to the parties affected, and before the report is tendered in evidence, a party affected may, by notice in writing sent to the expert, seek clarification of any aspect of the report.

(2)  Unless the court orders otherwise, a party affected may send no more than one such notice.

(3)  Unless the court orders otherwise, the notice must be in the form of questions, no more than 10 in number.

(4)  The party sending the notice must, on the same day as it is sent to the parties’ single expert, send a copy of it to each of the other parties affected.

(5)  Each notice sent under this rule must be endorsed with the date on which it is sent.

(6)  Within 28 days after the notice is sent, the parties’ single expert must send a signed copy of his or her response to the notice to each of the parties affected.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.42 Tender of reports and of answers to questions

(1)  Subject to rule 31.23 (3) and unless the court orders otherwise, the parties’ single expert’s report may be tendered in evidence by any of the parties affected.

(2)  Unless the court orders otherwise, any or all of the parties’ single expert’s answers in response to a request for clarification under rule 31.41 may be tendered in evidence by any of the parties affected.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.43 Cross-examination of parties’ single expert

Any party affected may cross-examine a parties’ single expert, and the expert must attend court for examination or cross-examination if so requested on reasonable notice by a party affected.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.44 Prohibition of other expert evidence

Except by leave of the court, a party to proceedings may not adduce evidence of any other expert on any issue arising in proceedings if a parties’ single expert has been engaged under this Division in relation to that issue.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.45 Remuneration of parties’ single expert

(1)  The remuneration of a parties’ single expert is to be fixed by agreement between the parties affected and the expert or, failing agreement, by, or in accordance with the directions of, the court.

(2)  Subject to subrule (3), the parties affected are jointly and severally liable to a parties’ single expert for his or her remuneration.

(3)  The court may direct when and by whom a parties’ single expert is to be paid.

(4)  Subrules (2) and (3) do not affect the powers of the court as to costs.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

Subdivision 5 Court-appointed experts

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.46 Selection and appointment (cf SCR Part 39, rule 1; DCR Part 28A, rule 1; LCR Part 38B, rule 1)

(1)  If an issue for an expert arises in any proceedings the court may, at any stage of the proceedings:

(a)  appoint an expert to inquire into and report on the issue, and

(b)  authorise the expert to inquire into and report on any facts relevant to the inquiry, and

(c)  direct the expert to make a further or supplemental report or inquiry and report, and

(d)  give such instructions (including instructions concerning any examination, inspection, experiment or test) as the court thinks fit relating to any inquiry or report of the expert or give directions concerning the giving of such instructions.

(2)  The court may appoint as a court-appointed expert a person selected by the parties affected, a person selected by the court or a person selected in a manner directed by the court.

(3)  A person must not be appointed as a court-appointed expert unless he or she consents to the appointment.

(4)  If any party affected knows that a person is under consideration for appointment as a court-appointed expert:

(a)  the party affected must not, prior to the appointment, communicate with the person for the purpose of eliciting the person’s opinion as to the issue or issues concerned, and

(b)  if the party affected has previously communicated with the person for that purpose, he or she must notify the court as to the substance of those communications.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.47 Instructions to court-appointed expert

The court may give directions as to:

(a)  the issues to be dealt with in a report by a court-appointed expert, and

(b)  the facts, and assumptions of fact, on which the report is to be based,

including a direction that the parties affected must endeavour to agree on the instructions to be provided to the expert.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.48 Court-appointed expert may apply to court for directions

(1)  A court-appointed expert may apply to the court for directions to assist the expert in the performance of the expert’s functions in any respect.

(2)  Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.

(3)  A court-appointed expert who makes such an application must send a copy of the request to the parties affected.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.49 Court-appointed expert’s report to be sent to registrar (cf SCR Part 39, rule 3; DCR Part 28A, rule 3; LCR Part 38B, rule 3)

(1)  The court-appointed expert must send his or her report to the registrar, and a copy of the report to each party affected.

(2)  Subject to rule 31.23 (3) and unless the court orders otherwise, a report that has been received by the registrar is taken to be in evidence in any hearing concerning a matter to which it relates.

(3)  A court-appointed expert who, after sending a report to the registrar, changes his or her opinion on a material matter must forthwith provide the registrar with a supplementary report to that effect.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.50 Parties may seek clarification of court-appointed expert’s report

Any party affected may apply to the court for leave to seek clarification of any aspect of the court-appointed expert’s report.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.51 Cross-examination of court-appointed expert (cf SCR Part 39, rule 4; DCR Part 28A, rule 4; LCR Part 38B, rule 4)

Any party affected may cross-examine a court-appointed expert, and the expert must attend court for examination or cross-examination if so requested on reasonable notice by a party affected.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.52 Prohibition of other expert evidence (cf SCR Part 39, rule 6; DCR Part 28A, rule 6; LCR Part 38B, rule 6)

Except by leave of the court, a party to proceedings may not adduce evidence of any expert on any issue arising in proceedings if a court-appointed expert has been appointed under this Division in relation to that issue.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.53 Remuneration of court-appointed expert (cf SCR Part 39, rule 5; DCR Part 28A, rule 5; LCR Part 38B, rule 5)

(1)  The remuneration of a court-appointed expert is to be fixed by agreement between the parties affected and the expert or, failing agreement, by, or in accordance with the directions of, the court.

(2)  Subject to subrule (3), the parties affected are jointly and severally liable to a court-appointed witness for his or her remuneration.

(3)  The court may direct when and by whom a court-appointed expert is to be paid.

(4)  Subrules (2) and (3) do not affect the powers of the court as to costs.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

31.54 Assistance to court by other persons (cf SCR Part 39, rule 7; DCR Part 28A, rule 7; LCR Part 38B, rule 7)

(1)  In any proceedings, the court may obtain the assistance of any person specially qualified to advise on any matter arising in the proceedings and may act on the adviser’s opinion.

(2)  Rule 31.53 applies to and in respect of a person referred to in subrule (1) in the same way as it applies to and in respect of a court-appointed witness.

(3)  This rule does not apply to proceedings in the Admiralty List of the Supreme Court or to proceedings that are tried before a jury.

pt 31, div 2, sdivs 4, 5 (rules 31.37–31.54): Ins 2006 (717), Sch 1 [1].

Division 3

  (Repealed)

pt 31, div 3: Rep 2006 (717), Sch 1 [1].

Part 32 Evidence and Procedure (New Zealand) Act 1994 (Commonwealth)

32.1 Definitions (cf SCR Part 36A, rule 1)

(1)  In this Part:

another court means an inferior court.

the Commonwealth Act means the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth.

(2)  Expressions used in this Part have the same meanings as they have in the Commonwealth Act.

32.2 Leave to serve subpoena (cf SCR Part 36A, rule 3)

(1)  Application for leave under the Commonwealth Act to serve a subpoena in New Zealand must be made:

(a)  if the subpoena is issued in proceedings in the Supreme Court, by motion in the proceedings, or

(b)  in any other case, by summons in the Common Law Division joining as defendant the person to whom the subpoena is addressed.

(2)  The application must be supported by an affidavit annexing a copy of the subpoena and setting out the following:

(a)  the name, designation or occupation, and address of the person named and whether that person is over 18 years of age,

(b)  the nature and significance of the evidence to be required from the person named, or of the document or thing required to be produced by that person,

(c)  details of the steps taken to ascertain whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience, to the person named,

(d)  the date by which it is intended to serve the subpoena,

(e)  details of:

(i)  the calculation of the sum sufficient to meet reasonable expenses in complying with the subpoena, and

(ii)  how and when those expenses are to be paid, or tendered, to that person in money or in vouchers,

(f)  if the subpoena requires the person named to give evidence, an estimate of the time that person will be required to attend to give evidence,

(g)  details of any facts or matters known to the deponent which may provide cause for the subpoena to be set aside under section 14 (2) and (3) of the Commonwealth Act.

(3)  Unless the Supreme Court orders otherwise, the applicant for leave may proceed without serving the summons or notice of motion on any person.

(4)  Before granting leave under the Commonwealth Act to serve a subpoena, the Supreme Court may require the applicant for leave to undertake to meet the expenses or loss reasonably incurred by the person named, not being a party to the proceedings, in complying with the subpoena, if those expenses or loss exceed the allowances and travelling expenses to be provided to that person at the time of service of the subpoena.

32.3 Production of document or thing under subpoena (cf SCR Part 36A, rule 4)

If the court receives a fax under section 17 of the Evidence Amendment Act 1994 of New Zealand, the registrar may confirm with the registry that issued the receipt in New Zealand that the document or thing produced is able to be transported to the Supreme Court as soon as practicable so that the document or thing may be produced in the Supreme Court on the date the person named in the subpoena was to have attended.

32.4 Failure to comply with subpoena issued by the Supreme Court (cf SCR Part 36A, rule 5)

(1)  A person may apply to the Supreme Court for a certificate under section 16 of the Commonwealth Act by filing a notice of motion together with:

(a)  an affidavit of service of the subpoena and order and notice referred to in section 10 (3) of the Commonwealth Act, and

(b)  an affidavit stating:

(i)  particulars of the order granting leave to serve the subpoena, and

(ii)  whether application was made to set aside the subpoena and, if so, particulars of the application and of its outcome, and

(iii)  that the subpoena was not complied with, and

(c)  a draft certificate.

(2)  Despite subrule (1), application for a certificate may be made orally if the proceedings in which the certificate is sought are then before the Supreme Court.

(3)  Unless the Supreme Court orders otherwise, the applicant need not serve notice of motion for the issue of the certificate.

(4)  An application under subrule (1) may be determined or dealt with by the Supreme Court in the absence of the public and without any attendance by or on behalf of any person.

32.5 Setting aside subpoena (cf SCR Part 36A, rule 6)

(1)  A person may apply to the Supreme Court to set aside a subpoena under section 13 of the Commonwealth Act by filing a notice of motion together with an affidavit setting out the facts and grounds on which the application is based.

(2)  The notice of motion must be filed at, or faxed for filing to, the Sydney registry of the Supreme Court.

(3)  If the Supreme Court receives a notice of motion by post or fax, it must acknowledge receipt and advise the applicant whether or not the notice of motion has been accepted for filing and, if it has not been accepted, the reasons for its rejection.

(4)  The registrar must serve the notice of motion and affidavit on the party who obtained leave to serve the subpoena, and may do so by faxing them to that party’s fax number.

(5)  An application under this rule is to be determined in such manner as the Supreme Court may direct.

32.6 Evidence by video-link or telephone (cf SCR Part 36A, rule 7)

(1)  A person may apply to the Supreme Court for a direction under section 25 of the Commonwealth Act (being a direction that evidence be taken, or submissions made, by video-link or telephone from New Zealand) by filing a notice of motion together with an affidavit stating the following:

(a)  the reasons why such a procedure is desirable,

(b)  the nature of the evidence to be taken,

(c)  the number of witnesses to be examined,

(d)  the expected duration of the evidence,

(e)  whether issues of character are likely to be raised,

(f)  in the case of submissions, the expected duration of the submissions,

(g)  the facilities available for such a procedure or that can reasonably be made available,

(h)  that the requirements of section 26 or 27 of the Commonwealth Act are able to be met.

(2)  In deciding whether to grant the application, the Supreme Court may take account of the matters set out in the applicant’s affidavit in addition to any other matters considered to be material, including cost and convenience to the witness and all parties.

(3)  If the Supreme Court makes a direction under section 25 (1) of the Commonwealth Act that evidence be taken, or submissions made, by video-link or telephone from New Zealand, it may direct the registrar to arrange and co-ordinate the appropriate facilities in Australia and New Zealand.

(4)  Without limiting the generality of subrule (3), the Supreme Court may direct:

(a)  that the registrar arrange for the evidence to be given, or the submissions to be made, at the High Court of New Zealand or at another place approved by that court, and

(b)  that an officer of the High Court of New Zealand, or another person approved by the Supreme Court, be requested to be present to assist in the transmission of the evidence or submissions and, in particular, to:

(i)  introduce witnesses to be called and legal representatives, and

(ii)  assist with the administration of oaths, if necessary, and

(iii)  assist with the implementation of any directions or requests given or made by the judicial officer or other officer hearing the evidence or submissions.

32.7 Fax copies (cf SCR Part 36A, rule 8)

(1)  Part 6 of the Commonwealth Act is taken to apply to a fax of a document in the same way as it applies to the original of the document (whether or not that original is itself a copy or an extract of a document).

(2)  If a fax of a document is adduced in evidence under Part 6 of the Commonwealth Act, the party adducing that evidence must file in the registry a copy of the fax.

Part 33 Subpoenas

Note—

The provisions of this Part comprise uniform rules developed under the auspices of the Australian Council of Chief Justices.

pt 33, note: Ins 2006 (288), Sch 1 [11].

33.1 Definitions (cf SCR Part 37, rule 1)

(1)  In this Part:

addressee means the person who is the subject of the order expressed in a subpoena.

conduct money means a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending.

issuing officer means an officer of the court who is empowered to issue a subpoena on behalf of the court.

issuing party means the party at whose request a subpoena is issued.

registrar, in relation to proceedings in respect of which a subpoena is sought or issued, means:

(a)  in relation to the Supreme Court, the principal registrar, and, and

(a1)  in relation to the Industrial Court, the industrial registrar referred to in section 207 of the Industrial Relations Act 1996, and

(b)  in relation to the District Court:

(i)  the principal registrar, or

(ii)  the registrar of the District Court for the proclaimed place (within the meaning of the District Court Act 1973) where the subpoena was issued, or where the subpoena is returnable, whichever is applicable, and

(c)  in relation to the Local Court, the registrar of the Local Court for the venue where the subpoena was issued.

subpoena means an order in writing requiring the addressee:

(a)  to attend to give evidence, or

(b)  to produce the subpoena or a copy of it and a document or thing, or

(c)  to do both of those things,

and includes a summons to that effect under section 165 of the Industrial Relations Act 1996.

(2)  To the extent that a subpoena requires the addressee to attend to give evidence, it is called a subpoena to attend to give evidence.

(3)  To the extent that a subpoena requires the addressee to produce the subpoena or a copy of it and a document or thing, it is called a subpoena to produce.

Note—

See also rules 7.3, 10.12, 10.20, 31.20, 31.22 and 31.23 with respect to the issue and service of subpoenas.

rule 33.1: Am 2007 (501), Sch 1 [3]; 2007 (579), Sch 2 [5]; 2009 (570), Sch 1 [6] [7].

33.2 Issuing of subpoena (cf SCR Part 37, rule 2)

(1)  The court may, in any proceeding, by subpoena order the addressee:

(a)  to attend to give evidence as directed by the subpoena, or

(b)  to produce the subpoena or a copy of it and any document or thing as directed by the subpoena, or

(c)  to do both of those things.

(2)  An issuing officer must not issue a subpoena:

(a)  if the court has made an order, or there is a rule of the court, having the effect of requiring that the proposed subpoena:

(i)  not be issued, or

(ii)  not be issued without the leave of the court and that leave has not been given, or

(b)  requiring the production of a document or thing in the custody of the court or another court.

(3)  The issuing officer must seal with the seal of the court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service.

(4)  A subpoena is taken to have been issued on its being sealed or otherwise authenticated in accordance with subrule (3).

33.3 Form of subpoena (cf SCR Part 37, rule 3)

(1)  A subpoena must be in the approved form.

(2)  A subpoena must not be addressed to more than one person.

(3)  Unless the court orders otherwise, a subpoena must identify the addressee by name or by description of office or position.

(4)  A subpoena to produce must:

(a)  identify the document or thing to be produced, and

(b)  specify the date, time and place for production.

(5)  A subpoena to attend to give evidence must specify the date, time and place for attendance.

(6)  The date specified in a subpoena must be the date of trial or any other date as permitted by the court.

(7)  The place specified for production may be the court or the address of any person authorised to take evidence in the proceeding as permitted by the court.

(8)  The last date for service of a subpoena:

(a)  is the date falling 5 days before the earliest date on which an addressee is required to comply with the subpoena or an earlier or later date fixed by the court, and

(b)  must be specified in the subpoena.

(9)  If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer.

rule 33.3: Am 2007 (164), Sch 1 [7].

33.4 Setting aside or other relief (cf SCR Part 37, rule 4)

(1)  The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

(2)  An application under subrule (1) must be made on notice to the issuing party.

(3)  The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

33.5 Service (cf SCR Part 37, rule 5)

(1)  A subpoena must be served personally on the addressee.

(2)  The issuing party must serve a copy of a subpoena to produce on each other active party as soon as practicable after the subpoena has been served on the addressee.

rule 33.5: Am 2005 (395), Sch 1 [38].

33.6 Compliance with subpoena (cf SCR Part 37, rule 6)

(1)  An addressee need not comply with the requirements of a subpoena to attend to give evidence unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required.

(2)  An addressee need not comply with the requirements of a subpoena unless it is served on or before the date specified in the subpoena as the last date for service of the subpoena.

(3)  Despite rule 33.5 (1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.

(4)  The addressee must comply with a subpoena to produce:

(a)  by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the court or to the person authorised to take evidence in the proceeding as permitted by the court, or

(b)  by delivering or sending the subpoena or a copy of it and the document or thing to the registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production.

(5)  In the case of a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and of the document or thing in any of the ways permitted by subrule (4) does not discharge the addressee from the obligation to attend to give evidence.

(6)  Unless a subpoena specifically requires the production of the original, the addressee may produce a copy of any document required to be produced by the subpoena.

(7)  The copy of a document may be:

(a)  a photocopy, or

(b)  in PDF format on a CD-ROM.

(c)    (Repealed)

rule 33.6: Am 2009 (569), Sch 1 [5]; 2010 (172), Sch 1 [3] [4].

33.7 Production otherwise than on attendance (cf SCR Part 37, rule 7)

(1)  This rule applies if an addressee produces a document or thing in accordance with rule 33.6 (4) (b).

(2)  The registrar must, if requested by the addressee, give a receipt for the document or thing to the addressee.

(3)  If the addressee produces more than one document or thing, the addressee must, if requested by the registrar, provide a list of the documents or things produced.

(4)  The addressee may, with the consent of the issuing party, produce a copy, instead of the original, of any document required to be produced.

(5)  The addressee may at the time of production inform the registrar in writing that any document or copy of a document produced need not be returned and may be destroyed.

33.8 Removal, return, inspection, copying and disposal of documents and things (cf SCR Part 37, rule 8)

The court may give directions in relation to the removal from and return to the court, and the inspection, copying and disposal, of any document or thing that has been produced to the court in response to a subpoena.

33.9 Inspection of, and dealing with, documents and things produced otherwise than on attendance (cf SCR Part 37, rule 9)

(1)  This rule applies if an addressee produces a document or thing in accordance with rule 33.6 (4) (b).

(2)  On the request in writing of a party, the registrar must inform the party whether production in response to a subpoena has occurred, and, if so, include a description, in general terms, of the documents and things produced.

(3)  Subject to this rule, no person may inspect a document or thing produced unless the court has granted leave and the inspection is in accordance with that leave.

(4)  Unless the court orders otherwise, the registrar may permit the parties to inspect at the office of the registrar any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule.

(5)  If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the registrar in writing of the objection and of the grounds of the objection.

(6)  If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the registrar in writing of the objection and of the grounds of the objection.

(7)  On receiving notice of an objection under this rule, the registrar:

(a)  must not permit any, or any further, inspection of the document or thing the subject of the objection, and

(b)  must refer the objection to the court for hearing and determination.

(8)  The registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party must notify the addressee, the objector and each other party accordingly.

(9)  The registrar must not permit any document or thing produced to be removed from the office of the registrar except on application in writing signed by the solicitor for a party.

Note—

See rule 1.3 (2) with respect to the meaning of the reference to a solicitor for a party.

(10)  A solicitor who signs an application under subrule (9) and removes a document or thing from the office of the registrar, undertakes to the court by force of this rule that:

(a)  the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding, and

(b)  the document or thing will be returned to the registry in the same condition, order and packaging in which it was removed, as and when directed by the registrar.

Note—

See rule 1.3 (3) with respect to the meaning of the reference to a solicitor who removes a document or thing from the office of the registrar and the reference to the personal custody of the solicitor.

(11)  The registrar may, in the registrar’s discretion, grant an application under subrule (9) subject to conditions or refuse to grant the application.

rule 33.9: Am 2006 (288), Sch 1 [12] [13].

33.10 Disposal of documents and things produced (cf SCR Part 37, rule 10)

(1)  Unless the court orders otherwise, the registrar may, in the registrar’s discretion, return to the addressee any document or thing produced in response to a subpoena.

(2)  Unless the court orders otherwise, the registrar must not return any document or thing under subrule (1) unless the registrar has given to the issuing party at least 14 days’ notice of the intention to do so and that period has expired.

(3)  The issuing party must attach, to the front of a subpoena to produce to be served on the addressee, a notice and declaration in the approved form.

(4)  The addressee must complete the notice and declaration and attach it to the subpoena or copy of the subpoena that accompanies the documents produced to the court under the subpoena.

(5)  Subject to subrule (6), the registrar may, on the expiry of 4 months from the conclusion of the proceeding, cause to be destroyed all the documents produced in the proceedings in compliance with a subpoena, that were declared by the addressee to be copies.

(6)  The registrar may cause to be destroyed those documents, declared by the addressee to be copies, that have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.

rule 33.10: Am 2007 (164), Sch 1 [8]; 2009 (569), Sch 1 [6].

33.11 Costs and expenses of compliance (cf SCR Part 37, rule 11)

(1)  The court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.

(2)  If an order is made under subrule (1), the court must fix the amount or direct that it be fixed in accordance with the court’s usual procedure in relation to costs.

(3)  An amount fixed under this rule is separate from and in addition to:

(a)  any conduct money paid to the addressee, and

(b)  any witness expenses payable to the addressee.

33.12 Failure to comply with subpoena—contempt of court (cf SCR Part 37, rule 12)

(1)  Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly.

(2)  Despite rule 33.5 (1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.

(3)  Subrules (1) and (2) are without prejudice to any power of the court under any rules of the court (including any rules of the court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.

33.13 Documents and things in the custody of a court (cf SCR Part 37, rule 13)

(1)  A party who seeks production of a document or thing in the custody of the court or of another court may inform the registrar in writing accordingly, identifying the document or thing.

(2)  If the document or thing is in the custody of the court, the registrar must produce the document or thing:

(a)  in court or to any person authorised to take evidence in the proceeding, as required by the party, or

(b)  as the court directs.

(3)  If the document or thing is in the custody of another court, the registrar must, unless the court has otherwise ordered:

(a)  request the other court to send the document or thing to the registrar, and

(b)  after receiving it, produce the document or thing:

(i)  in court or to any person authorised to take evidence in the proceeding as required by the party, or

(ii)  as the court directs.

Part 34 Notices to produce at hearing

34.1 Notice to produce to court (cf SCR Part 36, rule 16; DCR Part 28, rule 18; LCR Part 23, rule 9)

(1)  A party may, by notice served on another party, require the other party to produce to the court, or to any examiner:

(a)  at any hearing in the proceedings or before any such examiner, or

(a1)  at any time fixed by the court for the return of subpoenas, or

(b)  by leave of the court, at some other specified time,

any specified document or thing.

(2)  The other party must comply with a notice to produce:

(a)  by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or

(b)  by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.

rule 34.1: Am 2006 (716), Sch 1 [18] [19].

34.2 Production under notice to produce to court (cf SCR Part 36, rule 16; DCR Part 28, rule 18; LCR Part 23, rule 9)

(1)  Unless the court orders otherwise, the other party must produce the document or thing in accordance with the notice to produce, without the need for any subpoena for production, if the document or thing is in his or her possession.

(2)    (Repealed)

(3)  Except by leave of the court, a party may not search for, or inspect, any document or thing that has been produced by another party under this rule but not admitted into evidence.

rule 34.2: Am 2006 (716), Sch 1 [20].

34.3 Costs and expenses of compliance (cf rule 33.11)

(1)  The court may order the party requiring production to pay the amount of any reasonable loss or expense incurred by the party required to produce in complying with a notice to produce.

(2)  If an order is made under subrule (1), the court must fix the amount or direct that it be fixed in accordance with the court’s usual procedure in relation to costs.

rule 34.3: Ins 2007 (327), Sch 1 [7].

Part 35 Affidavits

35.1 Irregularity does not invalidate affidavit (cf SCR Part 38, rule 5; DCR Part 30, rule 5; LCR Part 25, rule 5)

An affidavit may, with the leave of the court, be used despite any irregularity in form.

35.2 Cross-examination of deponent (cf SCR Part 38, rule 9; DCR Part 30, rule 9; LCR Part 25, rule 10)

(1)  A party may, by written notice served on the party serving or proposing to use an affidavit, require the attendance for cross-examination of the person by whom the affidavit has been made.

(2)  Such notice is to be given a reasonable time before the time at which the person is required to attend for cross-examination.

(3)  If reasonable notice of such a requirement has been given in respect of an affidavit, and the deponent does not attend for examination, the affidavit may not be used unless the deponent is dead or unless the court orders otherwise.

(4)  If a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.

35.3 Persons who may make affidavit (cf SCR Part 24, rule 7; DCR Part 22A, rule 7)

(1)  If a party is required by these rules to file an affidavit or to verify any matter by affidavit, such an affidavit may be made by the party or:

(a)  if the party is a person under legal incapacity, by the party’s tutor, or

(b)  if the party is a corporation, by a member or officer of the corporation or (if it is in liquidation) by its liquidator, or

(c)  if the party is a body of persons lawfully suing or being sued:

(i)  in the name of the body, or

(ii)  in the name of any member or officer of the body, or

(iii)  in the name of any other person associated with the body,

by a member or officer of the body, or

(d)  if the party is the Crown or an officer of the Crown suing or being sued in his or her official capacity, by an officer of the Crown, or

(e)  if the proceedings are being brought in the plaintiff’s name by some other person pursuant to a right of subrogation:

(i)  by that other person, or

(ii)  if that other person is a corporation, by a member or officer of the corporation or (if it is in liquidation) by its liquidator.

(2)  Such an affidavit may also be made, in relation to proceedings in the Local Court:

(a)  by the party’s solicitor, or by a commercial agent with respect to debt collection (within the meaning of the Commercial Agents and Private Inquiry Agents Act 2004), in relation only to proceedings on an application for:

(i)  an instalment order, or

(ii)  an order for examination, or

(iii)  a writ of execution, or

(iv)  a garnishee order, or

(v)  default judgment (but only in the Small Claims Division), or

(b)  by a person holding a licence as a real estate agent, strata managing agent or on-site residential property manager within the meaning of the Property, Stock and Business Agents Act 2002 in relation only to:

(i)  proceedings on an application referred to in paragraph (a), or

(ii)  the filing of a certificate under section 51 of the Consumer, Trader and Tenancy Tribunal Act 2001.

(2A)  If more than one person is qualified to make an affidavit on behalf of a party, it is sufficient for such an affidavit to be made (subject to subrules (1) and (2)) by any one or more of them.

(3)  Subject to any order of the court, the person by whom an affidavit is made must be a person having knowledge of the facts deposed to in the affidavit.

(4)  If an affidavit is made by a person other than the party required to file or verify the affidavit, the affidavit must set out the facts that qualify the person to make the affidavit.

(5)  Subject to subrule (1), a requirement of these rules for an affidavit as to any matter may be satisfied by separate affidavits made by separate persons in relation to separate aspects of that matter.

rule 35.3: Am 2005 (395), Sch 1 [39] [40]; 2006 (171), Sch 1 [1] [2]; 2006 (288), Sch 1 [14]; 2007 (501), Sch 1 [4].

35.3A Heading to affidavit

The heading to an affidavit must include the name of the deponent and the date on which the affidavit is made.

rule 35.3A: Ins 2006 (716), Sch 1 [21].

35.4 Format of affidavit dealing with more than one matter (cf SCR Part 38, rule 2; DCR Part 30, rule 2; LCR Part 25, rule 2)

If the body of an affidavit alleges or otherwise deals with more than one matter:

(a)  it must be divided into paragraphs, and

(b)  each matter must, so far as convenient, be put in a separate paragraph, and

(c)  the paragraphs must be numbered consecutively.

35.5 Alterations (cf SCR Part 38, rule 3; DCR Part 30, rule 3; LCR Part 25, rule 3)

If there is any interlineation, erasure or other alteration in the jurat or body of an affidavit, the affidavit may not be used, except by leave of the court, unless the person before whom the affidavit is sworn initials the alteration and, in the case of an erasure, rewrites in the margin of the affidavit any words or figures written on the erasure and signs or initials them.

35.6 Annexures and exhibits (cf SCR Part 38, rule 4; DCR Part 30, rule 4; LCR Part 25, rule 4)

(1)  A document to be used in conjunction with an affidavit may be made:

(a)  an annexure to the affidavit, or

(b)  an exhibit to the affidavit.

(2)  An annexure to an affidavit must be identified as such by a certificate endorsed on the annexure (and not on a page separate from the annexure) signed by the person before whom the affidavit is made.

(3)  The pages of an affidavit, together with any annexures, must be consecutively numbered in a single series of numbers.

(4)  An exhibit to an affidavit must be identified as such by a certificate attached to the exhibit entitled in the same manner as the affidavit and signed by the person before whom the affidavit is made.

(5)  An exhibit to an affidavit must not be filed.

(6)  If any other party so requires, a party who serves an affidavit to which a document is an exhibit:

(a)  must produce the document for inspection by that other party, or

(b)  must provide a photocopy of the document to that other party, or

(c)  must produce the document at some convenient place to enable it to be photocopied by that other party.

35.7 Affidavits by persons who cannot read

An affidavit made by a blind or illiterate person may not be used unless:

(a)  the affidavit bears a certificate referred to in section 27A of the Oaths Act 1900, or

(b)  the court is otherwise satisfied:

(i)  that the affidavit was read to the deponent in the presence of the person before whom it was made, and

(ii)  that it appeared to that person that the deponent understood the affidavit.

35.7A Name of legal practitioner or commissioner for affidavits on affidavit (cf SCR Part 38, rule 2 (4A), (4B) and (5))

(1)  A legal practitioner who takes and receives an affidavit concerning any matter within the jurisdiction of the court must, by use of a stamp or otherwise, add, legibly below the legal practitioner’s signature, the legal practitioner’s name and address together with the word “barrister” or “solicitor”, as the case requires.

(2)  A commissioner for affidavits who takes and receives an affidavit concerning any matter within the jurisdiction of the court, must, by use of a stamp or otherwise, add, legibly below the commissioner’s signature, the commissioner’s name and address together with the words “commissioner for affidavits”.

(3)  In this rule, commissioner for affidavits means a person who is authorised by the Chief Justice of the Supreme Court, under section 27 (2) of the Oaths Act 1900, to take and receive affidavits.

rules 35.7A, 35.7B: Ins 2005 (395), Sch 1 [41].

35.7B Each page of affidavit to be signed

Each page of an affidavit must be signed by the deponent and by the person before whom it is sworn.

rules 35.7A, 35.7B: Ins 2005 (395), Sch 1 [41].

35.8 Affidavit of service not to annex copies of filed documents (cf SCR Part 38, rule 7A; DCR Part 30, rule 10; LCR Part 25, rule 11)

(1)  An affidavit of service of a document that has been served must clearly identify the document, but must not annex a copy of the document unless the document has not been filed.

(2)  An affidavit of service must contain:

(a)  a statement as to when, where, how and by whom service was effected, and

(b)  a statement, using as nearly as practicable the actual words used by the person to whom the process was delivered, as to what, if anything, that person said, on the occasion of service, concerning the service or the subject matter of the proceedings, and

(c)  a statement that the deponent is over the age of 16 years, or is of a named class of persons who by virtue of their status, occupation or otherwise must be over that age.

rule 35.8: Am 2006 (288), Sch 1 [15].

35.9 Filing of affidavits (cf SCR Part 38, rule 6; DCR Part 30, rule 6; LCR Part 25, rule 6)

Except by leave of the court, an affidavit must not be filed unless it is filed:

(a)  in accordance with these rules, or

(b)  in accordance with other rules of court applicable to the court in which it is filed, or

(c)  in accordance with a practice note applicable to the court in which it is filed.

Part 36 Judgments and orders

Division 1 General

36.1 General relief (cf SCR Part 40, rule 1; DCR Part 31, rule 8; LCR Part 26, rule 1)

At any stage of proceedings, the court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion.

36.1A Consent orders

(1)  The court may give judgment, or order that judgment be entered, in the terms of an agreement between parties in relation to proceedings between them.

(2)  Unless the court, for special reasons, otherwise orders, the court must refuse to give judgment, or order that judgment be entered, in terms that restrict, or purport to restrict, any disclosure of the terms of the judgment or order.

(3)  Subrule (2) does not limit the effect of any agreement between the parties that contains provisions that restrict the parties, or purport to restrict the parties, from disclosing the terms of the agreement or of the judgment or order.

rule 36.1A: Ins 2007 (164), Sch 1 [9].

36.2 Written reasons for judgment (cf SCR Part 40, rule 2; DCR Part 31, rule 9; LCR Part 26, rule 2)

(1)  If the court gives any judgment, or makes any order or decision, and its reasons for the judgment, order or decision are reduced to writing, it is sufficient for the court to state its judgment, order or decision orally, without stating the reasons.

(2)  After a judgment, order or decision has been stated orally under subrule (1), a written copy of it, including the court’s reasons for it, must then be delivered to an associate, registrar or some other officer of the court for delivery to the parties or may instead be delivered directly to the parties.

36.3 Reserved decision (cf DCR Part 2A, rule 7, Part 31, rule 10)

(1)  If in any proceedings a judicial officer reserves his or her judgment or decision on any question, he or she:

(a)  may give the judgment or decision, either in open court or in the absence of the public:

(i)  at the venue for those proceedings, or

(ii)  at any other place at which he or she is authorised to hear or dispose of those proceedings, or

(b)  may reduce the judgment or decision to writing, sign it and forward it to the registrar at the venue for the proceedings.

(2)  If a registrar receives a judgment or decision forwarded under subrule (1) (b):

(a)  the registrar must appoint a time for the judgment or decision to be read, and

(b)  the registrar must give at least 24 hours’ notice to the parties, in writing or otherwise, of the appointed time, and

(c)  at the appointed time, the judgment or decision must be read by another judicial officer of the court, or by the registrar, whether or not the court is sitting at that time.

(3)  A judgment or decision given under subrule (1) (a) or read under subrule (2) (c) takes effect on the day on which it is so given or read and is as valid as if given by the judicial officer at the hearing of the proceedings to which the judgment or decision relates.

(4)  Rule 36.2 applies to a judgment or decision referred to in this rule in the same way as it applies to a judgment or decision referred to in that rule.

36.4 Date of effect of judgments and orders (cf SCR Part 40, rule 3; DCR Part 31, rule 13A (2))

(1)  A judgment or order takes effect:

(a)  as of the date on which it is given or made, or

(b)  if the court orders that it not take effect until it is entered, as of the date on which it is entered.

(2)  Despite subrule (1), if an order of the court directs the payment of costs, and the costs are to be assessed, the order takes effect as of the date when the relevant cost assessor’s certificate is filed.

(3)  Despite subrules (1) and (2), the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by those subrules.

36.5 Time for compliance with judgments and orders (cf SCR Part 40, rule 4; DCR Part 31, rule 12)

(1)  If a judgment or order requires a person to do an act within a specified time, the court may, by order, require the person to do the act within another specified time.

(2)  If a judgment or order requires a person:

(a)  to do an act forthwith or forthwith on a specified event, or

(b)  to do an act but does not specify a time within which he or she is required to do the act,

the court may, by order, require the person to do the act within a specified time.

36.6 Judicial notice to be taken of orders and undertakings (cf SCR Part 40, rule 10; DCR Part 31, rule 14; LCR Part 26, rule 5)

(1)  In any proceedings, the court may take judicial notice of:

(a)  any order made by the court, or by any other court, and

(b)  any undertaking given to the court, or to any other court.

(2)  In any proceedings, the court may be informed of an order or undertaking by (among other things) reference to:

(a)  a note made by the judicial officer making the order or accepting the undertaking, or by his or her associate or by any other proper officer, or

(b)  a note made by the registrar or other officer making the order or accepting the undertaking.

36.7 Payment of interest (cf SCR Part 40, rule 7)

(1)  The prescribed rate at which interest is payable under section 101 of the Civil Procedure Act 2005 is:

(a)  in respect of the period from 1 January to 30 June in any year—the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and

(b)  in respect of the period from 1 July to 31 December in any year—the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced.

(2)  The Local Court may not order the payment of interest up to judgment in any proceedings in which the amount claimed is less than $1,000.

rule 36.7: Am 2005 (395), Sch 1 [42]; 2010 (172), Sch 1 [5].

36.8 Possession of land (cf SCR Part 40, rule 11)

Unless the court orders otherwise, judgment for possession of land may not be given or entered against a defendant in his or her absence unless the plaintiff files an affidavit:

(a)  stating that, when the originating process was filed or (if the claim for possession arises from an amendment to the originating process) when the amendment was made:

(i)  specified persons (other than parties to the proceedings) had been in occupation of the whole or any part of the land, or

(ii)  no persons (other than parties to the proceedings) had been in occupation of the whole or any part of the land, and

(b)  stating that, as to each person specified in accordance with paragraph (a) (i) (other than a person whose occupation the plaintiff does not seek to disturb):

(i)  the originating process has been duly served on the person, or

(ii)  the person has, since the time referred to in paragraph (a), ceased to be in occupation of any part of the land, and

(c)  in relation to a claim for possession by reason of default in the payment of money, stating particulars of the default.

36.9 Arrest warrants

An arrest warrant issued by order of the court must be signed by a judicial officer or by a registrar.

36.10 Filing of cost assessors’ certificates (cf SCR Part 40, rule 12)

(1)  A cost assessor’s certificate:

(a)  may be filed in the proceedings to which it relates, or

(b)  may be filed in fresh proceedings, whether in the same court or another court.

(2)  If, in relation to proceedings in which a cost assessor’s certificate is filed, there is also filed an affidavit, sworn not earlier than 14 days before it is filed, stating:

(a)  if the affidavit is filed with the certificate, how much of the amount of costs included in the certificate has not been paid, and

(b)  otherwise, the amount of the costs included in the certificate that, at the time the certificate was filed, had not been paid,

the registrar may enter judgment for the amount of the costs that have not been paid, without a direction of the court or request of a party.

Division 2 Entry of judgments and orders

36.11 Entry of judgments and orders (cf SCR Part 41, rule 11)

(1)  Any judgment or order of the court is to be entered.

(2)  Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court’s computerised court record system.

(2A)  If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered:

(a)  when a document embodying the judgment or order is signed and sealed by a registrar, or

(b)  when the judgment or order is recorded as referred to in subrule (2),

whichever first occurs.

(3)  In this rule, a reference to a judgment or order of the court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in section 133 (2) of the Civil Procedure Act 2005.

(4)  This rule does not limit the operation of rule 36.10.

rule 36.11: Am 2005 (717), Sch 1 [9]; 2006 (391), Sch 1 [8]; 2008 (494), Sch 1 [9].

Division 3 Copies and service

36.12 Registrar to furnish copies of judgments and other documents (cf SCR Part 41, rule 15; DCR Part 31, rule 16; LCR Part 26, rule 7)

(1)  Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the registrar must:

(a)  furnish a sealed copy of any judgment or order that has been entered in the proceedings to any person who applies for such a copy, or

(b)  seal a document provided by the person that, in the opinion of the registrar, accurately sets out the terms of the judgment or order.

(1A)  A document sealed by a registrar in accordance with subrule (1) (b) is taken to be a sealed copy of the relevant judgment or order.

(2)  Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the registrar:

(a)  must furnish to any party to any proceedings, and

(b)  may furnish to any other person appearing to have a sufficient interest in the proceedings,

a copy of any pleading or other document that has been filed in the proceedings.

(3)  Despite subrules (1) and (2), the registrar must not furnish a copy of an adoption order made in proceedings under the Adoption Act 2000 to any person, except the plaintiff in those proceedings, unless the court orders otherwise.

rule 36.12: Am 2006 (96), Sch 1 [5].

36.13 Registrar to furnish copies of external judgments (cf SCR Part 41, rule 15A)

(1)  In this rule:

external judgment, in relation to a court, means:

(a)  a judgment or order of any other court that is registered or filed in the court under any Act (including any Commonwealth Act), or

(b)  a cost assessor’s certificate issued otherwise than in relation to proceedings in the court.

judgment or order includes:

(a)  an amendment of or to a judgment or order, and

(b)  a certificate of a judgment or order.

section 21B certificate means a certificate filed in the court under section 21B (3) of the Crimes Act 1914 of the Commonwealth.

(2)  On payment of the prescribed fee, the registrar:

(a)  must furnish a certified copy of an external judgment or section 21B certificate:

(i)  if the external judgment is registered or filed under an order of the court, to any party to the proceedings in which the order for registration was made, and

(ii)  if the external judgment is registered otherwise than under an order of the court, to the person on whose application registration was effected, and

(iii)  if the external judgment or section 21B certificate is filed in the court, to any person who filed the judgment or certificate, and

(b)  may furnish a certified copy of an external judgment or section 21B certificate to any other person appearing to have a sufficient interest in the judgment or certificate.

(3)  On the certified copy of the external judgment or section 21B certificate concerned, the registrar must endorse a statement that indicates the following matters:

(a)  the provision under which registration or filing was effected,

(b)  the date of registration or filing,

(c)  if registration or filing was effected by means of a faxed copy, that registration or filing was so effected,

(d)  if registration or filing has been cancelled or has ceased to have effect, the date of cancellation or cessation.

36.14 Service of judgment or order not required (cf SCR Part 41, rule 16; DCR Part 31, rule 17; LCR Part 26, rule 8)

A sealed copy of a judgment or order need not be served unless these rules expressly so require or the court so directs.

Division 4 Setting aside and variation of judgments

36.15 General power to set aside judgment or order (cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)

(1)  A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2)  A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)

(1)  The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2)  The court may set aside or vary a judgment or order after it has been entered if:

(a)  it is a default judgment (other than a default judgment given in open court), or

(b)  it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c)  in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3)  In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

(a)  determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b)  dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A)  If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B)  Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C)  Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4)  Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

rule 36.16: Am 2007 (164), Sch 1 [10]; 2007 (327), Sch 1 [8] [9]; 2007 (449), Sch 1 [4] [5]; 2007 (501), Sch 1 [5]; 2009 (501), Sch 1 [11].

36.17 Correction of judgment or order (“slip rule”) (cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10)

If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

36.18 Variation of judgment or order against party operating under unregistered business name (cf SCR Part 64, rule 7; DCR Part 46, rule 6; LCR Part 35, rule 6)

(1)  In any proceedings in which judgment has been given, or an order made, against a person under a business name, the court may vary the judgment or order so as to make it a judgment or order against the person in the person’s own name.

(2)  Notice of motion for a direction under subrule (1) must be personally served on the person.

Part 37 Time to pay and payment by instalments

37.1 Instalments under Fines Act 1996

This Part does not apply to a fine in relation to which enforcement action is being taken under Division 4 of Part 4 of the Fines Act 1996.

Note—

The Fines Act 1996 has its own regime for the payment of fines by instalments.

rule 37.1: Ins 2008 (338), Sch 1 [12].

37.1A Instalment order made pursuant to agreement between judgment creditor and judgment debtor (cf DCR Part 31A, rule 2; LCR Part 27, rule 2)

(1)  A judgment creditor and judgment debtor may enter into an agreement (an instalment agreement):

(a)  specifying the amount agreed by them to be owing under the judgment debt, and

(b)  specifying by what instalments, payable at what times, that amount is to be paid.

(2)  An instalment agreement may be entered into whether or not an instalment order is already in force in respect of the judgment debt.

(3)  An instalment agreement may be entered into on behalf of a judgment creditor or judgment debtor by his or her solicitor or barrister.

(4)  An instalment agreement has no effect for the purposes of this rule unless the signature of each person executing it (other than a solicitor or barrister) is witnessed by a registrar or other officer of the court or by a solicitor or barrister.

(5)  As soon as practicable after an instalment agreement is filed, the court must make an instalment order that gives effect to the agreement.

rule 37.1A (previously rule 37.1): Renumbered 2008 (338), Sch 1 [12].

37.2 Application for instalment order by judgment debtor (cf DCR Part 31A, rule 2; LCR Part 27, rule 2)

(1)  A judgment debtor may apply to the court for an instalment order with respect to the amount owing under the judgment debt.

(2)  Such an application:

(a)  may be made whether or not some other instalment order is in force in relation to the judgment debt, and

(b)  must be supported by an affidavit as to the judgment debtor’s financial circumstances, and

(c)  must be dealt with as soon as practicable after it is made.

(3)  An application under this rule:

(a)  except as provided by paragraph (b), is to be dealt with by the registrar under rule 37.3, or

(b)  if it is made during a hearing before the court, is to be dealt with by the court under rule 37.4.

(4)  Notice of motion of an application under this rule does not have to be filed or served if the application is made during the hearing at which the judgment debtor is being examined pursuant to an order for examination.

(5)    (Repealed)

rule 37.2: Am 2007 (579), Sch 2 [6].

37.3 Instalment order made by registrar

(1)  The registrar may deal with an application for an instalment order:

(a)  by making an instalment order in relation to the amount owing under the judgment debt, or

(b)  by making an order refusing the application.

(2)  As soon as practicable after making an instalment order under this rule, the registrar:

(a)  must give notice of the order to the judgment creditor and the judgment debtor, and

(b)  must also give to the judgment creditor a copy of the affidavit referred to in rule 37.2 (2) (b).

(3)  Either party may file an objection to an order made under subrule (1) (a) or (b) at any time within 14 days after the order is made.

rule 37.3: Am 2005 (395), Sch 1 [43].

37.4 Instalment order made by court (cf DCR Part 31A, rule 2; LCR Part 27, rule 2)

(1)  This rule applies if the court is dealing with:

(a)  an application for an instalment order pursuant to rule 37.2 (3) (b), or

(b)  an objection against an order made under rule 37.3 (1) (a) or (b).

(2)  On receiving the application or objection, the court:

(a)  must set the matter down for hearing, and

(b)  must give notice of the time, date and place of the hearing to the judgment creditor and the judgment debtor, and

(c)  if it has not already been done, must also give to the judgment creditor a copy of the affidavit referred to in rule 37.2 (2) (b).

(3)  The court may determine an application for an instalment order, or an objection against an order refusing such an application:

(a)  by making an instalment order in relation to the amount owing under the judgment debt, or

(b)  by dismissing the application.

(4)  The court may determine an objection against the making of an instalment order:

(a)  by varying or rescinding the instalment order, or

(b)  by dismissing the objection.

(5)  As soon as practicable after making its determination, the court must give notice of the determination, and (if it makes or varies an instalment order) of the terms of the order or the order as varied, to the judgment creditor and the judgment debtor.

37.4A Payment of instalments under instalment order

(1)  Unless the court for special reasons orders otherwise, the judgment debtor must pay the amounts under an instalment order to the judgment creditor.

(2)  This rule does not apply to money recovered on behalf of a person under legal incapacity.

Note—

The payment of money recovered on behalf of a person under legal incapacity is regulated by section 77 of the Civil Procedure Act 2005.

rule 37.4A: Ins 2008 (338), Sch 1 [11].

37.5 Stay of execution pending determination of application for instalment order

(1)  Execution of the judgment to which an application for an instalment order relates is stayed:

(a)  from the time the application is made until the time the application is determined, and

(b)  if the application is refused by an order under rule 37.3 (1) (b) and an objection against the order is filed under rule 37.3 (3), from the time the objection is filed until the time the objection is determined.

(2)  Subrule (1) does not apply if the applicant has previously made an application under this rule with respect to the same judgment debt.

Note—

See also section 107 (2) of the Civil Procedure Act 2005 which provides for stay of execution of the judgment while an instalment order is in force.

37.6 Variation or rescission of instalment order on proof of improvement in judgment debtor’s financial circumstances (cf DCR Part 31A, rule 3; LCR Part 27, rule 3)

(1)  A judgment creditor may apply to the court for the variation or rescission of an instalment order.

(2)  Such an application must be supported by an affidavit as to the judgment debtor’s financial circumstances, indicating the extent to which they appear to have improved since the instalment order was made.

(3)  On receiving the application, the registrar:

(a)  must set the matter down for hearing, and

(b)  must give notice of the time, date and place of the hearing to the judgment creditor and the judgment debtor.

(4)  The court may determine the application:

(a)  by varying or rescinding the instalment order to which it relates, or

(b)  by dismissing the application.

(5)  As soon as practicable after making its determination, the court must give notice of the determination and, if it varies the instalment order, of the terms of the order as varied:

(a)  to the judgment creditor and the judgment debtor, and

(b)  if the determination relates to an instalment order to which a garnishee order is subject, to the garnishee.

37.7 Effect of instalment order on judgment debt (cf DCR Part 31A, rule 3; LCR Part 27, rule 3)

Subject to any agreement referred to in rule 37.1A, an instalment order ceases to have effect if the judgment debtor fails to comply with the order.

rule 37.7: Am 2008 (338), Sch 1 [13].

Part 38 Examination of judgment debtor etc

38.1 Examination notice (cf Act No 11 1970, section 43A)

(1)  The person in whose favour a judgment or order has been given or made may, by notice in writing served on the person bound by the judgment or order (an examination notice), require that person to do either or both of the following:

(a)  to provide answers to specified material questions,

(b)  to produce for inspection by the judgment creditor specified documents in relation to material questions.

(2)  An examination notice must specify the period (being not less than 28 days) within which its requirements must be complied with.

38.2 Application for order for examination

(1)  An application for an order for examination with respect to the enforcement of a judgment or order must be supported by an affidavit as to the following matters:

(a)  that the judgment or order remains unsatisfied,

(b)  that the applicant has served an examination notice on the person bound by the judgment or order but that person has failed, within the time limited by the notice:

(i)  to provide any or sufficient answers to the questions specified in the notice, or

(ii)  to produce any or sufficient documents for inspection by the applicant,

as to any material questions,

(c)  that the person bound by the judgment or order has not, within the previous 3 months, provided any or sufficient answers, or produced any or sufficient documents, in response to any previous examination notice,

(d)  in the case of a judgment or order for the payment of money, whether or not an instalment order has previously been made in relation to the amount payable under the judgment or order and, if such an order has been made, that the person bound by the judgment or order has failed to comply with the instalment order.

(2)  The provisions of subrule (1) (b) and (c) do not apply in relation to a judgment or order of the Supreme Court.

(3)  Unless the court otherwise orders, an application under this rule:

(a)  may be dealt with in the absence of the parties, and

(b)  need not be served on the person bound by the judgment or order.

rule 38.2: Am 2005 (395), Sch 1 [44].

38.3 Orders for examination (cf DCR Part 25, rules 1 and 3; LCR Part 28, rules 1 and 2)

(1)  In the case of a judgment or order of any court other than the Supreme Court, the court may not make an order for examination against the person bound by the judgment or order unless it is satisfied that the person:

(a)  has been served with an examination notice in accordance with rule 38.1, and

(b)  has failed, within the time limited by the notice:

(i)  to provide any or sufficient answers to the questions specified in the notice, or

(ii)  to produce any or sufficient documents for inspection by the judgment creditor,

as to any material questions.

(2)  An order for examination must specify the time, date and place at which the person bound by the judgment or order is required to attend for examination.

(3)  An order for examination must be served on the person bound by the judgment or order at least 14 days before the day on which he or she is required to attend for examination.

(4)  A court that has made an order for examination may not, within 3 months after the order is made, make a further order for examination of the same person, on the application of the same person and in relation to the same judgment or order.

(5)  A person may refuse to produce a document or thing in response to an order for examination if the person could lawfully refuse to produce that document or thing on a subpoena for production.

38.4 Venue of examination

(1)  Subject to this rule, the examination of a person in respect of a judgment or order is to be conducted at the same venue as that where the judgment or order was entered.

(2)  If, in the case of proceedings before the District Court, the Court is satisfied that the person neither resides nor carries on business within 30 kilometres of the proclaimed place where the judgment or order was entered, then the examination is to be conducted at the proclaimed place nearest to where the person resides or carries on business, as the Court may determine.

(3)  If, in the case of proceedings before the Local Court, the Court is satisfied that the person neither resides nor carries on business within 30 kilometres of the venue where the judgment or order was entered, then the examination is to be conducted at the premises of the Court nearest to where the person resides or carries on business, as the Court may determine.

rule 38.4: Am 2007 (579), Sch 2 [7].

38.5 Examination under an order for examination under rule 38.3 (cf DCR Part 32, rules 1 and 5; LCR Part 28, rules 1 and 3)

(1)  Unless the court orders otherwise, examination of a person under an order for examination is to be conducted by the person on whose application the order was made.

(2)  Examination of a person under an order for examination may be conducted by the court if:

(a)  the person attends for examination following his or her arrest pursuant to a warrant issued under section 97 of the Civil Procedure Act 2005 as a consequence of the person’s failure to comply with an order for examination, or

(b)  the person attends for examination otherwise than at the time specified in the order, or

(c)  the court is satisfied for any other reason that the circumstances so warrant.

(3)  If the examination of a person under an order for examination is conducted by the court:

(a)  the person may be required to answer questions on oath, and

(b)  the examination may be conducted in open court or in the absence of the public, as the court directs, and

(c)  the court must notify the person on whose application the order was made of the person’s answers to the questions asked at the examination.

(4)  An examination under this rule may be adjourned from time to time, as occasion requires.

(5)  In this rule:

order for examination means an order for examination referred to in rule 38.3.

rule 38.5: Am 2006 (96), Sch 1 [6] [7].

38.6 Arrest warrant where person fails to comply with order for examination under rule 38.3 (cf Act No 9 1973, section 92; Act No 11 1970, section 42; DCR Part 32, rule 6; LCR Part 28, rule 7)

A warrant issued under section 97 of the Civil Procedure Act 2005 as a consequence of a person’s failure to comply with an order for examination referred to in rule 38.3:

(a)  may be issued or revoked by the court of its own motion or on the application of the person in whose favour a judgment or order has been given or made, and

(b)  must be expressed to expire no later than 3 months after the date on which it is issued, and

(c)  may not be issued in relation to a person’s failure to comply with an order for examination earlier than 14 days, nor later than 3 months, after the court has served notice on the person to whom the order for examination is addressed that failure to attend for examination may result in the person’s arrest.

rule 38.6: Subst 2006 (96), Sch 1 [8].

38.7 Application of Part to persons that are corporations

(1)  In the case of a person that is a corporation:

(a)  any examination notice under this Part may be addressed to an officer or former officer of the corporation, and

(b)  any order for examination under this Part may be made against an officer or former officer of the corporation,

and any such officer or former officer is bound by the requirements of this Part in respect of that notice or order as if he or she were the corporation.

(2)  If an examination notice is addressed to an officer or former officer of a corporation in relation to a judgment or order, any subsequent order for examination in respect of the same judgment or order must, unless the court orders otherwise, be made against the same officer or former officer.

Part 39 Enforcement of judgments

Division 1 Enforcement of writs of execution generally

39.1 Circumstances in which issue of writ requires leave (cf SCR Part 44, rule 2)

(1)  A writ of execution may not be issued in the following circumstances except by leave of the court:

(a)  if there has been any change in the persons entitled or liable to execution under the judgment, whether by assignment, death or otherwise,

(b)  if the judgment is against the assets of a deceased person coming to the hands of an executor or administrator after the judgment took effect, and the writ is against those assets or any of them,

(c)  if a person’s entitlement under the judgment is subject to fulfilment of a condition,

(d)  if the writ is a writ for the possession of land,

(e)  if the writ is against property in the hands of a receiver appointed by the court,

(f)  if the writ is against property in the hands of a sequestrator,

(g)  if the writ is in aid of another writ of execution.

Note—

See also section 134 of the Civil Procedure Act 2005 with respect to stale judgments.

(2)  If leave is required, it may be applied for in the notice of motion for the issue of the writ of execution.

(3)  The motion for leave must be supported by the following evidence:

(a)  evidence that the applicant is entitled to proceed to execution on the judgment,

(b)  evidence that the person against whom execution is sought to be issued is liable to execution on the judgment,

(c)  if the judgment is for the payment of money, evidence as to the amount due on the date of the motion,

(d)  if subrule (1) (a) applies, evidence as to the change which has taken place,

(e)  if subrule (1) (b) or (c) applies, evidence that a demand to satisfy the judgment has been made on the person liable to satisfy it and that the person has not satisfied it.

(4)  Subrule (1) does not limit the operation of any other Act or law that requires leave for the issue of a writ of execution.

39.2 Application for writ of execution

(1)  An application for a writ of execution in respect of a judgment is to be made by way of notice of motion.

(2)  Unless the court orders otherwise, a notice of motion under this rule:

(a)  may be dealt with in the absence of the parties, and

(b)  need not be served on the judgment debtor.

(3)  The application must indicate the extent (if any) to which the judgment debt has been satisfied under any writ of execution, garnishee order or charging order issued by the court.

39.3 Affidavit in support of application for writ of execution (cf DCR Part 34, rule 13)

(1)  Unless the court orders otherwise, an applicant for a writ of execution must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.

(2)  In the case of a writ for the possession of land, the affidavit in support:

(a)  must identify any persons (other than parties to the proceedings) who were in occupation of the whole or any part of the land:

(i)  as at the time the originating process was filed, or

(ii)  if the claim for possession arises from an amendment to the originating process, as at the time the amendment was made,

and, if any such person was in occupation of the land pursuant to a right of occupation under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987, must contain a statement to that effect, and

(b)  in relation to each such person:

(i)  must state that the person’s occupation of the land is not to be disturbed, or

(ii)  must state that the person is no longer in occupation of any part of the land, or

(iii)  must state that the person has been served with a notice pursuant to rule 6.8 and that the time allowed for the person to apply to the court to be joined as a defendant has now passed,

as the case requires, and

(c)  if the claim for possession of the land arises from a default in the payment of money, must give particulars of the default, and

(d)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the occupation of the land and any default in the payment of money referred to in paragraph (c), and

(e)  must state whether costs are claimed and, if costs are claimed and the costs claimable are fixed by law, the amount (not exceeding the amount so fixed) that is claimed for costs.

Note—

The costs fixed by law referred to in paragraph (e) include costs that are fixed under section 329 (1) (c) of the Legal Profession Act 2004.

(3)  In the case of a writ for the delivery of goods, the affidavit in support:

(a)  must state which goods have not been delivered to the plaintiff since the time the judgment was given, and

(b)  must give particulars of any payments that the defendant has made to the plaintiff in respect of the goods or state that no such payments have been made, as the case may be, since the time the judgment was given, and

(c)  must state the address at which the goods are alleged to be located.

(4)  In the case of a writ for the levy of property, the affidavit in support:

(a)  must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and

(b)  must state the address or addresses at which property belonging to the judgment debtor may be located, and

(c)  if the judgment was entered as a result of the filing of a cost assessor’s certificate, must include a statement to that effect, together with a statement to the effect that the determination set out in the certificate:

(i)  is not subject to any suspension under section 377 (1) of the Legal Profession Act 2004 that has not been ended under section 377 (2) of that Act, and

(ii)  is not subject to any suspension under section 386 (1) of the Legal Profession Act 2004 that has not been ended under section 386 (2) of that Act.

(5)  Any application by the judgment creditor for a writ of execution in relation to a judgment debt that has been the subject of an instalment order that has ceased to have effect may not be granted unless the judgment creditor has filed an affidavit as to the judgment debtor’s failure to comply with the order.

rule 39.3: Am 2006 (716), Sch 1 [22] [23]; 2007 No 27, Sch 2.58; 2007 (579), Sch 1 [18]; 2009 (501), Sch 1 [12].

39.3A Sheriff to be informed of persons in occupation of land

(1)  This rule applies to:

(a)  a writ for the possession of land, and

(b)  a writ for the levy of property in respect of which a notice of sale of land has been filed as referred to in rule 39.22 (1) (b).

(2)  If the Sheriff so requests, the judgment creditor or other person for whose benefit the writ has been issued must inform the Sheriff as to whether any person is in occupation of the land pursuant to a right of occupation under a residential tenancy agreement, within the meaning of the Residential Tenancies Act 1987, and, if so:

(a)  whether the person has been given a notice to vacate under section 71A of that Act, and

(b)  if the person has been given such a notice, the date specified in the notice as the date by which the person is required to vacate the land.

rule 39.3A: Ins 2009 (501), Sch 1 [13].

39.4 Order in which writs for the levy of property to be dealt with (cf SCR Part 44, rule 8; Act No 9 1973, section 108)

Writs for the levy of property against the same judgment debtor are to be enforced by the Sheriff in the order in which they are received by the Sheriff, regardless of the order in which they were issued.

39.5 Property to be sold promptly (cf SCR Part 45, rule 5)

Subject to this Division, any property to be sold under a writ for the levy of property must be put up for sale as soon as practicable, having due regard to the interests of each of the parties and to the need to avoid of the sacrifice of the reasonable value of the property.

39.6 Order in which property to be sold (cf SCR Part 45, rule 4; Act No 9 1973, section 110; Act No 11 1970, section 62A)

(1)  If it appears to the Sheriff that the value of the property affected by a writ for the levy of property is greater than the amount outstanding under the judgment debt, the Sheriff may not cause to be sold any more of the property than is sufficient to satisfy the judgment.

(2)  Subject to subrule (3), property is to be sold:

(a)  in such order as seems to the Sheriff best for the speedy satisfaction of the judgment without undue expense, and

(b)  subject to paragraph (a), in such order as the judgment debtor may direct, and

(c)  subject to paragraphs (a) and (b), in such order as seems to the Sheriff best for minimising hardship to the judgment debtor or any other person.

(3)  Land must not be sold before any other property unless:

(a)  the judgment debtor so requests, or

(b)  the Sheriff is satisfied that the land should be sold before the other property in order to minimise hardship to the judgment debtor or some other person.

39.7 Sale to be by public auction (cf DCR Part 35, rule 5; LCR Part 30, rule 15)

(1)  Subject to rule 39.13, property sold under a writ for the levy of property must be sold by public auction, by the Sheriff or by an auctioneer appointed under rule 39.8, to the highest bidder.

(2)  Property must not be sold by public auction for a price substantially below its approximate market value, as fixed by the Sheriff under rule 39.10.

39.8 Auctioneer (cf SCR Part 45, rule 6; DCR Part 35, rule 3A; LCR Part 30, rule 13A)

(1)  If the nature and apparent value of property to be sold under a writ for the levy of property is such that it appears to the Sheriff that it is reasonable to sell the property, the Sheriff may appoint a duly qualified auctioneer to sell the property.

(2)  An auctioneer appointed to sell any property under a writ for the levy of property must, as soon as practicable after the Sheriff advises that the auctioneer’s services will not be required in respect of the writ, or otherwise requests an account of the auctioneer’s charges, advise the Sheriff of the amount of those charges to date.

(2A)  If, after the appointment of the auctioneer, it appears to the Sheriff that it is not reasonable to proceed with the sale, the Sheriff may direct that the property be withdrawn from sale.

(3)  An auctioneer appointed by the Sheriff to sell property under a writ for the levy of property must as soon as practicable after receiving any money under the writ pay the money to the Sheriff, less the amount of any charges payable to the auctioneer in respect of the writ.

rule 39.8: Am 2006 (288), Sch 1 [16]–[18].

39.9 Sale to be arranged so as to obtain highest prices (cf SCR Part 45, rules 5, 7 and 8; Act No 11 1970, section 59)

For the purpose of obtaining the highest prices for the property, the Sheriff:

(a)  must ascertain what appears to the Sheriff to be the best place for the sale to be held, and

(b)  must cause the sale to be held at the place so ascertained.

39.10 Approximate market value (cf SCR Part 45, rule 7; DCR Part 35, rule 8; LCR Part 30, rule 6)

(1)  Before selling property under a writ for the levy of property, the Sheriff must fix the approximate market value of the property, having regard to all the circumstances of the case, but need not disclose that value to any other person before the sale.

(2)  For the purpose of fixing such a value, the Sheriff:

(a)  may require the judgment creditor to furnish the Sheriff with any information known to, or reasonably capable of ascertainment by, the judgment creditor in respect of the property, and

(b)  may engage a suitably qualified and experienced valuer to provide the Sheriff with an opinion as to the value of the property if the nature and apparent value of the property so warrant.

(3)  If the judgment creditor unreasonably fails to furnish any information referred to in subrule (2) (a), the Sheriff must report the failure to the court, and may refuse to proceed further towards the sale of the property.

39.11 Postponement (cf DCR Part 35, rule 6; LCR Part 30, rule 16)

(1)  The Sheriff may from time to time postpone the sale of property under a writ for the levy of property, or require any auctioneer appointed to sell the property to postpone any such sale, if the Sheriff thinks it proper to postpone the sale:

(a)  to avoid a sacrifice of the reasonable value of the property, or

(b)  to comply with a request by the judgment creditor for the postponement.

(2)  If the date to which the sale of property is postponed under subrule (1) falls after the date on which the writ would otherwise expire, the date of expiry of the writ is postponed to the date of the postponed sale.

39.12 Suspension of execution by judgment creditor (cf DCR Part 34, rule 8; LCR Part 30, rule 7)

(1)  If, at any time before property is seized under a writ for the levy of property, the judgment creditor:

(a)  requires the Sheriff, by notice in writing, to suspend execution of the writ, or

(b)  requires the Sheriff, by a subsequent notice in writing, to resume execution of the writ,

the Sheriff must comply with the requirement.

(2)  If, at any time after property is seized under a writ for the levy of property, the judgment creditor (having entered into an arrangement with the judgment debtor with respect to the Sheriff’s withdrawal and re-entry into possession of the property and notified the Sheriff of the arrangement):

(a)  requires the Sheriff, by notice in writing, to withdraw from possession of the property and suspend execution of the writ, or

(b)  requires the Sheriff to re-enter into possession of the property and resume execution of the writ,

the Sheriff must comply with the requirement.

(3)  If, at any time after property is seized under a writ for the levy of property, the judgment creditor (not having notified the Sheriff of an arrangement referred to in subrule (2)) requires the Sheriff, by notice in writing, to withdraw from possession of the property and suspend execution of the writ, the judgment creditor is taken to have abandoned the execution, and the Sheriff must withdraw from possession of the property.

(4)  For the purposes of subrule (3), a request to postpone the sale of property under a writ for the levy of property is not a request to withdraw from possession of the property or to suspend execution of the writ.

(5)  The Sheriff’s duty under this rule to resume execution of a writ for the levy of property (the original writ) is subject to the Sheriff’s duties under this Part with respect to any other writ for the levy of property that had been issued against the same judgment debtor when execution of the original writ was suspended and, for that purpose, any other such writ is to be executed, and the proceeds of sale dealt with, as if that other writ had been received by the Sheriff before the original writ.

39.13 Sale by private treaty (cf SCR Part 45, rule 11; DCR Part 35, rule 8; LCR Part 30, rule 18)

(1)  If, at a public auction, the highest bid of property to be sold under a writ for the levy of property is substantially below their approximate market value, as fixed by the Sheriff, the Sheriff or (if the Sheriff so approves) the auctioneer may sell the property by private treaty.

(2)  The Sheriff must not approve a sale of property by private treaty at a price substantially below a fair value determined by the Sheriff.

(3)  In determining a fair value for the property for the purposes of subrule (2), the Sheriff:

(a)  must take into account all the relevant circumstances, including but not limited to:

(i)  the approximate market value of the property fixed by the Sheriff, and

(ii)  the amount of the highest bid for the property at the public auction, and

(iii)  the likelihood or otherwise of there being a higher bid if the property were again put up for sale by public auction, and

(b)  must not determine a fair value that is substantially below the amount of the highest bid for the property at the public auction.

39.14 Conditions of sale (cf DCR Part 35, rule 9; LCR Part 30, rule 19)

(1)  The Sheriff may sell property under a writ for the levy of property, or require any auctioneer appointed to sell such property:

(a)  on terms as to payment that the purchaser must pay:

(i)  an amount equal to at least 10% of the purchase price by way of deposit forthwith on the sale, and

(ii)  the balance of the purchase price within such period, not exceeding 2 days after the sale (in the case of goods) and 6 weeks after the sale (in the case of land), as the Sheriff may determine prior to the sale, or

(b)  on terms as to payment that the purchaser must pay the whole of the purchase price forthwith on the sale.

(2)  If a sale of property is partly of goods and partly of land, the goods may be sold on the same terms as to payment as the land.

(3)  The Sheriff may require payment to be in cash, by bank draft or, if the Sheriff so approves, by credit card.

(4)  If payment is made by credit card, any charge made to the Sheriff or auctioneer in respect of the payment is to form part of the costs of the execution.

39.15 How proceeds of enforcement to be applied (cf Act No 8 1901, sections 9 and 17; LCR Part 30, rule 20)

(1)  The proceeds of enforcement of a writ for the levy of property are to be applied as follows:

(a)  firstly, to the Sheriff to cover the Sheriff’s fees and expenses in executing the writ,

(b)  secondly, to the judgment creditor to satisfy the judgment debt,

(c)  thirdly, to the judgment debtor as to any amount remaining.

(2)  If the Sheriff receives writs for the levy of property (whether from the same or from different courts) in relation to more than one judgment creditor, the judgment creditors are to be paid from the proceeds of enforcement of the writs in the order in which the writs were received by the Sheriff.

39.16 Account (cf DCR Part 34, rule 9; LCR Part 30, rule 8)

On the request of the judgment creditor, or of any person who claims that his or her property has been sold by the Sheriff under a writ for the levy of property, the Sheriff must give that judgment creditor or person:

(a)  a report of any sale under the writ, and

(b)  an account of:

(i)  the proceeds of the sale and any other money received under the writ, and

(ii)  the Sheriff’s fees and expenses in relation to the writ, and

(iii)  the manner of disposal of the proceeds or other money.

39.17 Sheriff may require security for costs of execution (cf DCR Part 34, rule 7; LCR Part 30, rule 5)

(1)  At any time after receiving a writ of execution, the Sheriff may require the judgment creditor:

(a)  to lodge such security for payment of the Sheriff’s costs in relation to the execution of the writ, or

(b)  to give such undertaking as to payment of the Sheriff’s costs in relation to the execution of the writ,

as the Sheriff considers appropriate.

(2)  If the judgment creditor fails to comply with such a requirement, the Sheriff:

(a)  may refuse to execute the writ, and

(b)  may withdraw from any possession into which the Sheriff may have entered under the writ.

39.18 Sheriff to serve copy of writ when executing or attempting to execute writ (cf DCR Part 34, rule 5)

On executing a writ of execution, the Sheriff must cause a copy of the writ to be served on the judgment debtor or left in a conspicuous position at the place where the writ was executed.

39.19 When writ may not be executed (cf DCR Part 34, rule 10)

(1)  A writ of execution may not be executed on Christmas Day or Good Friday.

(2)  The Sheriff is not required to execute a writ of execution on any day on which court registries need not be open.

39.20 Expiry and renewal of writ of execution (cf SCR Part 44, rule 8; DCR Part 34, rule 2; LCR Part 30, rule 1, Part 30A, rule 2)

A writ of execution has effect for 12 months but may, subject to these rules, be renewed by the court.

rule 39.20: Am 2006 (391), Sch 1 [9].

Division 2 Enforcement of writs against land

39.21 Judgment creditor’s notice to judgment debtor (cf DCR Part 36, rule 2; LCR Part 30A, rule 3)

(1)  A judgment creditor may file an affidavit verifying:

(a)  the registration of a writ for the levy of property:

(i)  in the Register kept under the Real Property Act 1900, pursuant to section 105 of that Act, or

(ii)  in the General Register of Deeds kept under the Conveyancing Act 1919, pursuant to section 186 of that Act, and

(b)  the receipt by the judgment creditor of advice from the Sheriff to the effect that the Sheriff cannot obtain satisfaction of the writ by proceeding further against the goods of the judgment debtor.

Note—

Section 72 of the Fines Act 1996 provides that a property seizure order under that section operates as a writ for the levy of property issued by the Local Court and, for that purpose, that the State Debt Recovery Office is taken to be the judgment creditor.

(1A)  A copy of the advice referred to in subrule (1) (b) must be annexed to the affidavit.

(2)  On filing an affidavit referred to in subrule (1) the judgment creditor may lodge with the registrar in duplicate, and the registrar must seal, a notice (the judgment creditor’s notice) advising the judgment debtor of the following:

(a)  that a writ for the levy of property has been registered as referred to in subrule (1) (a),

(b)  that the judgment creditor intends that land of the judgment debtor be sold after the lapse of 4 weeks,

(c)  that the judgment debtor is entitled to sell or mortgage the land, but only in accordance with section 113 of the Civil Procedure Act 2005,

(d)  that the judgment debtor is entitled to apply for an instalment order under section 107 of the Civil Procedure Act 2005.

(3)  A sealed copy of the judgment creditor’s notice is to be served on the judgment debtor.

rule 39.21: Am 2006 (716), Sch 1 [24]; 2008 (338), Sch 1 [14] [15].

39.22 Judgment creditor’s application for sale (cf DCR Part 36, rules 4 and 6; LCR Part 30A, rules 5 and 7)

(1)  Land may not be sold under a writ for the levy of property until the following steps have been completed:

(a)  the judgment creditor has filed an affidavit of service of a judgment creditor’s notice under rule 39.21,

(b)  the judgment creditor has filed a notice of sale in the approved form (the notice of sale) and lodged 6 copies of it with the registrar,

(c)  the registrar has sealed each copy of the notice of sale so lodged and returned them to the judgment creditor,

(d)  the judgment creditor has given the 6 sealed copies of the notice of sale to the Sheriff,

(d1)  if required to do so under rule 39.3A, the judgment creditor has informed the Sheriff, in accordance with that rule, as to whether any person is in occupation of the land,

(e)  the Sheriff has fixed a date for the sale of the land, being a date occurring not less than 4 weeks after the date on which the judgment creditor’s notice was served on the judgment debtor,

(f)  the Sheriff has inserted the date so fixed in each copy of the notice of sale,

(g)  the Sheriff has returned 2 copies of the notice of sale, in which the date for the sale of the land has been inserted, to the judgment creditor,

(h)  at least one week before the date for the sale of the land, the judgment creditor has served a copy of the notice of sale, in which the date for the sale of the land has been inserted, on the judgment debtor,

(i)  the judgment creditor has furnished to the Sheriff such information as in his or her possession, or as he or she can reasonably obtain, that is relevant to the ascertainment of the value of the interest to be sold, including:

(i)  particulars of the value most recently assigned by the Valuer-General to the land the subject of the interest, and

(ii)  particulars of the title to that land as revealed by a recent search at the office of the Registrar-General.

(2)  The approved form referred to in subrule (1) (b) must contain a statement reminding the judgment debtor of his or her right to apply for an instalment order under section 107 of the Civil Procedure Act 2005.

rule 39.22: Am 2009 (501), Sch 1 [14].

39.23 Sale to be publicly advertised (cf DCR Part 36, rule 8; LCR Part 30A, rule 9)

(1)  The Sheriff, or the auctioneer appointed by the Sheriff, must cause an advertisement of any sale of land, including a full description of the land, to be published in the Gazette, and in a newspaper circulating in the district in which the land is situated, at least one week before the date fixed for the sale.

(2)  The sale of any land under a writ for the levy of property may, in addition to being advertised under subrule (1), be further advertised by the Sheriff, or the auctioneer appointed to sell the land, if the further advertisement is approved by the Sheriff.

39.24 Proof of service and publication (cf DCR Part 36, rule 9; LCR Part 30A, rule 10)

Before the sale of any land takes place under a writ for the levy of property, the judgment creditor must lodge with the Sheriff an affidavit as to:

(a)  the service on the judgment debtor of the notice of sale under rule 39.22, and

(b)  the date and particulars of publication of each advertisement published under rule 39.23 in relation to the sale.

39.25 Satisfaction by judgment debtor (cf DCR Part 36, rule 7; LCR Part 30A, rule 8)

If, before or at the time fixed for the sale of land under a writ for the levy of property, the judgment debtor indicates to the Sheriff, or to the auctioneer appointed to sell the land, that the judgment debtor intends to satisfy the writ, the judgment debtor must pay to the Sheriff or auctioneer:

(a)  the amount due under the judgment, including interest, and

(b)  the costs of the execution then known to the Sheriff or auctioneer, including any fees payable in respect of the execution to an auctioneer, and

(c)  an amount determined by the Sheriff as security for the judgment creditor’s costs of the execution other than those referred to in paragraph (b),

and, on receipt of the money, the Sheriff or auctioneer must cancel the sale.

39.26 Documents giving effect to sale

(1)  If land is sold at auction under a writ for the levy of property, the Sheriff and the purchaser must each sign an appropriate contract of sale forthwith after the auction is completed.

(2)  As soon as practicable after receiving payment in full for land sold under a writ for the levy of property, an appropriate conveyance or transfer (to be prepared by the purchaser) must be executed by the Sheriff and delivered to the purchaser for the purpose of giving effect to the sale.

39.27 Sheriff or auctioneer to report (cf DCR Part 36, rule 12; LCR Part 30A, rule 15)

As soon as practicable after the sale of land under a writ for the levy of property has been completed, the Sheriff or auctioneer appointed to sell land must make a report to the registrar as to:

(a)  the approximate market value of the land fixed by the Sheriff, and

(b)  the amount of the highest bid at the sale, and

(c)  whether or not the judgment debtor was identified to the Sheriff or auctioneer as being present at the sale, and

(d)  the amount of the auctioneer’s charges, and

(e)  any other matter which the Sheriff or auctioneer considers should be reported to the registrar.

39.28 Payment to judgment debtor (cf DCR Part 36, rule 13; LCR Part 30A, rule 16)

(1)  A judgment creditor at whose request a writ for the levy of property has been issued may file:

(a)  evidence of an agreement with the judgment debtor as to the amount of the judgment creditor’s costs of the execution, or

(b)  a notice of motion for the assessment of those costs.

(2)  Any evidence or notice of motion referred to in subrule (1) must be filed within 2 months after the receipt by the issuing registrar of:

(a)  the proceeds of sale of any land, or

(b)  any money under section 113 (5) of the Civil Procedure Act 2005, or

(c)  any money under rule 39.25,

or within such further time as may be consented to in writing by the judgment debtor.

(3)  If the judgment creditor files any evidence or notice in accordance with subrule (2), the registrar must as soon as practicable pay to the judgment debtor any money held by the registrar over and above the amount necessary to satisfy the writ for the levy of property.

(4)  If the judgment creditor:

(a)  does not file any evidence or notice in accordance with subrule (2), and

(b)  does not within the time allowed in that regard advise the registrar of any consent by the judgment debtor to extend that time,

the registrar may pay to the judgment debtor any money mentioned in subrule (2) and held by the registrar over and above the total of the amount necessary to satisfy the judgment (including interest) and the costs of the execution (other than solicitor’s profit costs) then known to the registrar.

(5)  The registrar must pay to the judgment creditor any money referred to in this rule that the registrar is not by this rule required to pay to the judgment debtor.

(6)  Nothing in this rule affects the right of the judgment creditor to recover against the judgment debtor the costs of execution of the writ for the levy of property.

Division 3 Enforcement of writs against goods etc

39.29 Removal of goods (cf DCR Part 35, rule 2; LCR Part 30, rule 12)

(1)  If any goods are seized under a writ for the levy of property, the Sheriff may remove them:

(a)  to a place where, in his or her judgment, the highest prices for the goods are most likely to be obtained, or

(b)  to a place of safe keeping.

(2)  As soon as practicable after removing any such goods, the Sheriff must notify the judgment debtor of their removal and give the judgment debtor an inventory of the goods so removed.

39.30 Time of sale (cf DCR Part 35, rule 3; LCR Part 30, rule 13)

(1)  Goods must not be sold under a writ for the levy of property before the sixth day after they were seized under the writ.

(2)  Despite subrule (1):

(a)  goods of a perishable nature may be sold forthwith after they are seized, and

(b)  if the judgment debtor so requests in writing, other goods may be sold at any time.

(3)  Goods seized under a writ for the levy of property are to remain in such custody as the Sheriff may appoint pending their sale under the writ.

39.31 Sale to be publicly advertised (cf DCR Part 35, rule 4; LCR Part 30, rule 14)

(1)  The Sheriff must cause notice of the intended sale of any goods under a writ for the levy of property to be affixed:

(a)  at or near the entrance to the place where the sale is to be held, or

(b)  if the sale is not to be held in a city or town, at the court-house or some convenient public place,

at least 5 days before the date appointed for the sale.

(2)  If goods are removed from a place in a city or town under rule 39.29 (1) (a), the Sheriff must cause notice of the intended sale of the goods to be affixed on or near the entrance to that place at least 5 days before the date appointed for the sale.

(3)  At least 5 days before the date appointed for the sale of any equity of redemption or other equitable interest in any goods, the Sheriff must cause notice of the intended sale, and particulars of the interest to be sold:

(a)  to be affixed at or near the entrance to the place where the sale is to be held, and

(b)  to be advertised in a newspaper circulating in the district in which the sale is to take place.

(4)  In addition to any other notice of a sale that he or she is required to give, the Sheriff must give such notice, by advertisement in a newspaper or otherwise, as appears necessary to give due publicity to the sale.

(5)  If an auctioneer has been appointed by the Sheriff to sell the goods, the notice referred to in subrule (4) may, with the approval of the Sheriff, be given by the auctioneer.

39.32 Sheriff or auctioneer to report (cf SCR Part 45, rule 14; DCR Part 34, rule 9; LCR Part 30, rule 8)

As soon as practicable after the sale of goods under a writ for the levy of property has been completed, the Sheriff or auctioneer appointed to sell the goods must make a report to the judgment creditor as to results of the sale.

rule 39.32: Subst 2005 (395), Sch 1 [45].

39.33 Possession fees (cf DCR Part 35, rule 1; LCR Part 30, rule 11)

(1)  No fees for keeping possession of any goods under a writ for the levy of property are payable to any person, or chargeable against the judgment debtor as costs of the execution, if the amount due under the writ is paid to the Sheriff within one hour after they are seized under the writ.

(2)  Subject to subrule (1), if more than one person is necessarily engaged in keeping possession of any goods under a writ for the levy of property, the fees payable to each such person are, unless the court orders otherwise, chargeable against the judgment debtor as part of the costs of the execution.

(3)  This rule does not affect any amount that may be payable to the Sheriff, by way of fees, out of money paid to the Sheriff by the judgment debtor.

Division 4 Garnishee orders

39.34 Application for garnishee order

(1)  An application for a garnishee order in respect of a judgment is to be made by way of notice of motion.

(2)  Unless the court orders otherwise, a notice of motion under this rule:

(a)  may be dealt with in the absence of the parties, and

(b)  need not be served on the judgment debtor or the proposed garnishee.

(3)  The application must indicate the extent (if any) to which the judgment debt has been satisfied under any writ of execution, garnishee order or charging order issued by the court.

39.35 Affidavit in support of application for garnishee order

(1)  Unless the court orders otherwise, an applicant for a garnishee order must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.

(2)  The affidavit in support:

(a)  must identify the garnishee, and any debts that appear to be owed by the garnishee to the judgment debtor, and

(b)  must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and

(c)  if the judgment was entered as a result of the filing of a cost assessor’s certificate, must include a statement to that effect, together with a statement to the effect that the determination set out in the certificate:

(i)  is not subject to any suspension under section 377 (1) of the Legal Profession Act 2004 that has not been ended under section 377 (2) of that Act, and

(ii)  is not subject to any suspension under section 386 (1) of the Legal Profession Act 2004 that has not been ended under section 386 (2) of that Act.

(3)  Any application by the judgment creditor for a garnishee order in relation to a judgment debt that has been the subject of an instalment order that has ceased to have effect may not be granted unless the judgment creditor has filed an affidavit as to the judgment debtor’s failure to comply with the order.

rule 39.35: Am 2006 (716), Sch 1 [23].

39.36 Form of garnishee order for debts (cf SCR Part 46, rule 3; Act No 9 1973, section 97; Act No 11 1970, section 47)

(1)  A garnishee order for debts must direct the garnishee to pay to the judgment creditor, to the extent of the amount outstanding under the judgment, all money:

(a)  held by the garnishee for or on behalf of the judgment debtor, or

(b)  owed by the garnishee to the judgment debtor.

(2)  The amount outstanding under the judgment must be specified in the order.

39.37 Form of garnishee order for wage or salary (cf SCR Part 46, rule 3; Act No 9 1973, section 97; Act No 11 1970, section 47)

(1)  A garnishee order for wage or salary must direct the garnishee to pay to the judgment creditor:

(a)  during the period for which the order is in force, and

(b)  to the extent of the amount outstanding under the judgment,

such amounts, from the wages or salary payable by the garnishee to the judgment debtor, as are specified in the order.

(2)  The amount outstanding under the judgment must be specified in the order.

39.38 Court may refuse to make garnishee order (cf Act No 9 1973, section 97; Act No 11 1970, section 47)

(1)  The court may refuse to make a garnishee order if of the opinion that such an order is inappropriate.

(2)  Without limiting subrule (1), the reasons that may lead the court into forming such an opinion may include:

(a)  the smallness of the amount recoverable under the judgment debt, and

(b)  the smallness of the debt, wage or salary to be attached.

39.39 When garnishee order takes effect

A garnishee order takes effect when it is served on the garnishee.

39.40 Affidavit that no debt due or accruing (cf Act No 9 1973, section 97A; Act No 11 1970, section 47A)

(1)  A garnishee who believes that:

(a)  no debt from the garnishee to the judgment debtor was due or accruing when the garnishee order was served on the garnishee, or

(b)  no wage or salary will become payable by the garnishee to the judgment debtor during the period for which the order will be in force,

may serve on the judgment creditor a statement to that effect, verified by affidavit, being a statement that contains a summary of the grounds on which the garnishee’s belief is based.

(2)  A disclosure of any information in an affidavit under subrule (1) does not, if the disclosure was reasonable in the circumstances, subject the garnishee to any action, liability, claim or demand.

39.41 Lien or claim of third person (cf Act No 9 1973, section 104)

(1)  This rule applies in circumstances in which the garnishee claims that some person, other than the judgment debtor, is or may be entitled to:

(a)  any money paid under a garnishee order, or

(b)  any debt, wage or salary attached by a garnishee order, or

(c)  any charge or lien on, or other interest in, any such money, debt, wage or salary.

(2)  In these circumstances, the court may hear and determine the garnishee’s claim and give such judgment or make such order in respect of the claim (including an order barring the claim and an order for the payment into court by a judgment creditor of money received under the garnishee order) as the nature of the case requires.

39.42 Amounts garnishee may retain

For the purposes of section 123 (2) (a) of the Civil Procedure Act 2005, the prescribed amount that may be retained by the garnishee out of money deducted under a garnishee order is as specified in item 4 of Schedule 3.

39.43 Notice required for certain attached debts yet to accrue (cf Act No 9 1973, section 97C; Act No 11 1970, section 47C)

(1)  If a garnishee order attaches a debt that is due for payment to the judgment debtor more than 28 days after service of the order on the garnishee, the garnishee must, within that period of 28 days, cause notice of that fact to be served on the judgment creditor.

(2)  The notice must specify:

(a)  the date on which the debt is, or is likely to be, due for payment to the judgment debtor, and

(b)  if the amount of the debt is less than the unpaid amount of the judgment debt specified in the garnishee order, the amount of the debt.

Note—

The giving of false or misleading information in such a notice constitutes an offence under section 307B of the Crimes Act 1900.

Division 5 Charging orders

39.44 Application for charging order

(1)  An application for a charging order in respect of a judgment is to be made by way of notice of motion.

(2)  Unless the court orders otherwise, a notice of motion under this rule:

(a)  may be dealt with in the absence of the parties, and

(b)  need not be served on the judgment debtor or the proposed chargee.

(3)    (Repealed)

rule 39.44: Am 2005 (395), Sch 1 [46].

39.45 Affidavit in support of application for charging order

(1)  Unless the court orders otherwise, an applicant for a charging order must file an affidavit in support of the application, being an affidavit sworn not more than 14 days before the date of filing.

(2)  The affidavit in support:

(a)  must state the amount payable under the judgment, together with any costs and interest payable in relation to the judgment, as at the date of swearing of the affidavit, and

(b)  if the judgment was entered as a result of the filing of a cost assessor’s certificate, must include a statement to that effect, together with a statement to the effect that the determination set out in the certificate:

(i)  is not subject to any suspension under section 377 (1) of the Legal Profession Act 2004 that has not been ended under section 377 (2) of that Act, and

(ii)  is not subject to any suspension under section 386 (1) of the Legal Profession Act 2004 that has not been ended under section 386 (2) of that Act, and

(c)  must indicate the extent (if any) to which the judgment debt has been satisfied under any other writ of execution, garnishee order or charging order issued by the court.

(3)  Any application by the judgment creditor for a charging order in relation to a judgment debt that has been the subject of an instalment order that has ceased to have effect may not be granted unless the judgment creditor has filed an affidavit as to the judgment debtor’s failure to comply with the order.

rule 39.45: Am 2005 (395), Sch 1 [47]; 2006 (716), Sch 1 [25].

Division 6 General

39.46 Value below which Sheriff may not seize tools of trade

For the purposes of section 106 (3) (c) of the Civil Procedure Act 2005, the aggregate value below which tools of trade may not be seized and sold by the Sheriff in execution of a judgment is $2,000.

39.47 Costs of prior execution not enforceable without costs assessor’s certificate (cf SCR Part 44, rule 10)

Except by leave of the court, the costs referred to in section 137 (2) (a) of the Civil Procedure Act 2005 must not be included in the amount for which a writ for the levy of property, garnishee order or charging order may be issued if a cost assessor’s certificate has been issued in respect of the costs of the prior writ or order but has not been filed.

39.48 Charge on partnership interest (cf SCR Part 47, rule 2)

(1)  An application to the Supreme Court under section 23 of the Partnership Act 1892 (which relates to procedure against partnership property by a judgment creditor of a partner) is to be made:

(a)  if the judgment is a judgment in proceedings in the Supreme Court, by notice of motion in the proceedings, or

(b)  if the judgment is not a judgment in proceedings in the Supreme Court, by summons joining the judgment debtor and his or her partners as defendants.

(2)  An application under section 23 of the Partnership Act 1892 made by a partner of the judgment debtor in consequence of an application under that section made by the judgment creditor is to be made by notice of motion in the proceedings in which the judgment creditor applies.

(3)  A summons or notice of motion filed under this rule, and an order made on an application under section 23 of the Partnership Act 1892, must be served on the following persons (other than the applicant):

(a)  the judgment creditor,

(b)  the judgment debtor,

(c)  such of the judgment debtor’s partners as are within New South Wales,

and, if so served, has effect as if it had been served on all of the partners.

39.49 Enforcement by or against non-party (cf SCR Part 42, rule 10)

(1)  If, in any proceedings, a person who is not a party obtains an order, or an order is made in favour of a person who is not a party, that person may enforce the order as if that person were a party.

(2)  If, in any proceedings, a judgment or order may be enforced against a person who is not a party, the judgment or order may be enforced against that person by the same means as if that person were a party.

(3)  If, in any proceedings, compliance with a judgment or order may be enforced against a corporation that is not a party, any senior officer of the corporation is liable to the same process of enforcement as if the corporation were a party.

39.50 Non-performance of condition (cf SCR Part 42, rule 11)

If a person is entitled under a judgment or order subject to the fulfilment of a condition, but the condition is not fulfilled, then, unless the court orders otherwise:

(a)  the person loses the benefit of the judgment or order, and

(b)  any other person interested may take any steps:

(i)  that are warranted by the judgment or order, or

(ii)  that might have been taken had the judgment not been given or entered or the order not been made.

39.51 Return of writ (cf SCR Part 44, rule 9; DCR Part 44, rule 6; LCR Part 30, rule 22)

On request by the judgment creditor, the Sheriff must return the writ to the court by which it was issued, together with a notice indicating:

(a)  what action, if any, has been taken in execution of the writ, and

(b)  whether or not the writ has been satisfied.

rule 39.51: Ins 2005 (395), Sch 1 [48].

39.52 Orders authorising entry to premises by Sheriff

An order under section 135 (2) (a) of the Civil Procedure Act 2005 may not be made in respect of any goods unless the court is satisfied:

(a)  that, while attempting to seize the goods, the Sheriff has been refused entry to the premises where they are believed to be, or

(b)  that there are special circumstances that justify the making of such an order.

rule 39.52: Ins 2007 (579), Sch 1 [19].

Part 40 Additional measures for enforcing judgments and orders of the Supreme Court and District Court

Division 1 Provisions applicable to the Supreme Court only

40.1 Application of Division

This Division applies to judgments and orders of the Supreme Court (in this Division referred to simply as judgments), and so applies in addition to the provisions of Part 8 of the Civil Procedure Act 2005.

40.2 Payment of money (cf SCR Part 42, rule 2)

(1)  A judgment for the payment of money (including a judgment for the payment of money into court) may be enforced by one or more of the following means:

(a)  appointment of a receiver of the income of the property of the person bound by the judgment,

(b)  sequestration of the property of the person bound by the judgment.

(2)  Subrule (1) does not affect any other means for enforcement of a judgment for the payment of money.

40.3 Leave for issue: sequestration (cf SCR Part 44, rule 3)

(1)  A writ of sequestration may not be issued except by leave of the court.

(2)  An applicant for leave under this rule:

(a)  must file notice of motion, and

(b)  must serve the notice, and any affidavit in support of the motion, personally on the person whose property is sought to be sequestrated.

(3)  The court may dispense with service under subrule (2) (b).

40.4 Security for future conduct (cf SCR Part 53, rule 6)

(1)  If, for the purpose of security for future conduct, the court:

(a)  requires any person to pay money into court or otherwise to deposit money, or

(b)  puts any person on terms of payment into court or other deposit of money, or

(c)  puts any person on terms of procuring payment into court or other deposit of money by some other person,

the court must, by order, specify the circumstances in which the money so paid or deposited is to be forfeited, returned or otherwise disposed of.

(2)  If, for the purpose of security for future conduct, the court:

(a)  requires any person to submit to an order for the payment of money, or

(b)  puts any person on terms of submitting to an order for the payment of money, or

(c)  puts any person on terms of procuring some other person to submit to an order for the payment of money,

the court must, by order, specify the circumstances in which the order for the payment of money may be made and may, by order, specify the manner in which the submission is to be made.

Division 2 Provisions applicable to the Supreme Court, Land and Environment Court and District Court

pt 40, div 2, hdg: Am 2007 (580), Sch 1 [5].

40.5 Application of Division

This Division applies to judgments and orders of the Supreme Court, the Land and Environment Court or the District Court (in this Division referred to simply as judgments), and so applies in addition to the provisions of Part 8 of the Civil Procedure Act 2005.

Note—

Under the District Court Act 1973, the powers conferred on the Supreme Court by this Division may also be exercised by the District Court in relation to certain judgments and orders of the District Court.

rule 40.5: Am 2007 (580), Sch 1 [6].

40.6 Doing or abstaining from doing an act (cf SCR Part 42, rule 6)

(1)  This rule applies in the following circumstances:

(a)  if:

(i)  a judgment requires a person to do an act within a time specified in the judgment, and

(ii)  the person fails to do the act within that time or, if that time is extended or abridged, within that time as extended or abridged,

(b)  if:

(i)  a judgment requires a person to do an act forthwith, or forthwith on a specified event, and

(ii)  the person fails to do the act as so required,

(c)  if:

(i)  a judgment requires a person to abstain from doing an act, and

(ii)  the person disobeys the judgment,

but does not apply to a judgment for the payment of money (including a judgment for the payment of money into court).

(2)  In circumstances to which this rule applies, a judgment may be enforced by one or more of the following means:

(a)  committal of the person bound by the judgment,

(b)  sequestration of the property of the person bound by the judgment,

(c)  if the person bound by the judgment is a corporation:

(i)  committal of any officer of the corporation, and

(ii)  sequestration of the property of any officer of the corporation.

40.7 Service of copy of judgment before committal or sequestration (cf SCR Part 42, rule 8)

(1)  A judgment is not enforceable by committal or sequestration unless:

(a)  a sealed copy of the judgment is served personally on the person bound by the judgment, and

(b)  if the judgment requires the person to do an act within a specified time, the sealed copy is so served within that time or, if that time is extended or abridged, within that time as extended or abridged.

(2)  If the person is a corporation, the judgment is not enforceable by committal of an officer of the corporation or by sequestration of the property of an officer of the corporation unless, in addition to service under subrule (1):

(a)  a sealed copy of the judgment is served personally on the officer, and

(b)  if the judgment requires the corporation to do an act within a specified time, the sealed copy is so served before that time expires.

(3)  The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property:

(a)  where the judgment requires the person to do an act within a specified time, if the person fails to do the act within that time, or

(b)  where the judgment requires the person to do an act forthwith or forthwith on a specified event, if the person fails to do the act as so required, or

(c)  where the judgment requires the person to abstain from doing an act, if the person disobeys the judgment.

(4)  If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment:

(a)  by being present when the judgment is directed to be entered, or

(b)  by being notified of the terms of the judgment, whether by telephone, telegram or otherwise,

the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule.

(5)  The court may dispense with service under this rule.

(6)  This rule does not apply to a committal or sequestration arising from a failure to comply with the requirements of a subpoena.

rule 40.7: Am 2007 (327), Sch 1 [10].

40.8 Substituted performance (cf SCR Part 42, rule 9)

If a judgment requires a person to do an act and the person does not do the act, the court:

(a)  may direct that the act be done by a person appointed by the court, and

(b)  may order the person to pay the costs incurred pursuant to the direction.

Part 41 Funds in court

41.1 Definitions

In this Part:

deposited funds means money that has been deposited in a bank in accordance with rule 41.2.

funds in court means money that has been paid into court.

41.2 Deposit of funds

Within one day after money is paid into court, the registrar must deposit the money in the court’s bank account.

rule 41.2: Subst 2006 (391), Sch 1 [10].

41.3 Withdrawal of deposited funds (cf SCR Part 50, rules 2 and 3)

(1)  Deposited funds may not be withdrawn or paid except by the authority of these rules or of a judgment or order.

(2), (3)    (Repealed)

rule 41.3: Am 2008 (494), Sch 1 [10].

41.4 Registrar to keep accounts (cf SCR Part 50, rule 4)

The registrar must, in relation to any deposited funds, keep an account of the deposit and of all withdrawals (including withdrawals of interest).

41.5 Investment (cf SCR Part 50, rule 5)

The court may direct that any deposited funds be invested in any manner in which a trustee is authorised to invest trust money under the Trustee Act 1925.

41.6 Interest not payable on certain funds in court (cf SCR Part 50, rule 5A)

(1)  Money that is paid into court as security for costs or as security on an appeal, or in relation to an offer of compromise under the Commercial Arbitration Act 1984, does not bear interest.

(2)  Subrule (1) does not apply to interest accruing on money paid to the NSW Trustee and Guardian.

rule 41.6: Am 2009 (501), Sch 1 [15].

41.7 Payment to the NSW Trustee and Guardian (cf SCR Part 50, rule 6A)

(1)  The registrar may, and if the court so directs, must:

(a)  pay funds in court to the NSW Trustee and Guardian for payment into the NSW Trustee and Guardian’s common fund, or

(b)  demand repayment by the NSW Trustee and Guardian to the registrar of money so paid.

(2)  When making a payment referred to in subrule (1) (a), the registrar must give particulars of the payment.

(3)  When making a repayment referred to in subrule (1) (b), the NSW Trustee and Guardian must give particulars of the repayment and any interest.

rule 41.7: Am 2009 (501), Sch 1 [15]–[18].

41.8 Interest on funds in court to abide the decision in proceedings (cf SCR Part 50, rule 6)

(1)  This rule applies if money is paid into court pursuant to an order to abide the decision in the proceedings, and is either invested or paid to the NSW Trustee and Guardian.

(2)  The court may, on application by a party or by its own motion, order the payment of interest to any party.

(3)  Despite subrule (2), if:

(a)  the court makes an order that the whole of the money be paid to one or more parties, and

(b)  the order does not expressly provide for the payment (or non-payment) of any interest accruing on the money,

any interest accruing on the money is to be paid to the party or parties.

(4)  Unless the court orders otherwise, the interest paid to a party under subrule (3) is to bear the same proportion to the total interest accruing on the total amount of money paid into court as the money paid to the party bears to the total amount of money paid into court.

(5)  In this rule, interest accruing on money means interest accruing on the money as a result of its investment under rule 41.5 or payment to the NSW Trustee and Guardian under rule 41.7.

rule 41.8: Am 2009 (501), Sch 1 [15].

41.9 Non-attendance of parties following notice by court (cf SCR Part 50, rule 6AA)

If the court gives notice to parties of its intention to order the payment to a party of funds in court, or of any interest accruing on those funds, and the party fails to attend court as directed in the notice, the court:

(a)  may order the payment of the funds or any interest accruing on those funds (or both) to one or more of the parties, in such proportions as the court thinks fit, or

(b)  may direct the registrar to pay the funds or any interest accruing on the funds (or both) to the Treasurer for payment into the Consolidated Fund, or

(c)  may decide not to make any such order.

41.10 Unclaimed funds (cf SCR Part 50, rule 6B)

(1)  In this rule, unclaimed funds means funds that have been paid into court in relation to any matter, including any interest accruing on those funds, other than funds or interest that have been paid to the Treasurer pursuant to a direction under rule 41.9 (b), where:

(a)  judgment has been entered on the matter, and

(b)  the whole or any part of the funds or interest remains unclaimed after 6 years from either of the following:

(i)  the making of an order for the payment of the whole of the funds or interest (or any part that is unclaimed),

(ii)  if no such order is made, the date of the judgment.

(2)  Any matter in respect of which there are unclaimed funds must be referred to the court by the registrar for a direction under subrule (3).

(3)  The court may direct the registrar to pay the unclaimed funds to the Treasurer for payment into the Consolidated Fund.

(4)  On the application of a person entitled to unclaimed funds paid to the Treasurer under subrule (3), the court may direct the Treasurer to pay the funds into court for payment to the person so entitled.

(5)  If satisfied that a person’s failure to make such an application was due to the fact that:

(a)  the person was then a person under legal incapacity, or

(b)  the unclaimed funds could not be dealt with until the happening of an event subsequent to the direction referred to in subrule (3),

the court may also order the Treasurer to pay into court, for payment to the person, an amount equivalent to the interest (if any) that would have been payable had the unclaimed funds paid to the Treasurer been deposited funds during the period between the date of their payment to the Treasurer under subrule (3) and the date of their repayment by the Treasurer under subrule (4).

41.11 Authority of recipient (cf SCR Part 50, rule 7)

Subject to these rules, funds in court may not be paid out of court except to the party entitled or (on the party’s written authority or by order of the court) to the party’s solicitor.

41.12 Death of payee (cf SCR Part 50, rule 9)

(1)  If:

(a)  by any judgment or order, the court directs payment of funds in court to any person, and

(b)  it appears to the registrar:

(i)  that the person has died since the date on which the judgment or order took effect, and that probate of the person’s will or letters of administration of the person’s estate have been granted to an executor or administrator, or

(ii)  that the person had died on or before the date on which the judgment or order took effect, and that his or her entitlement to payment arose under a direction for payment to creditors, shareholders or debenture holders,

then, unless the judgment or order otherwise directs, the registrar may pay the money to the deceased person’s executor or administrator.

(2)  Subject to subrule (3), this rule does not authorise payment of the funds to a deceased person’s executor or administrator if the deceased person appears to the registrar to have been entitled as trustee, executor or administrator, or otherwise not in his or her own right and for his or her own use.

(3)  The registrar may, under this rule, pay the money to an executor of the will of the person to whom payment is directed if it appears to the registrar that the person was entitled as sole or sole surviving executor.

41.13 Payment to partners (cf SCR Part 50, rule 10)

If, by any judgment or order, the court directs payment of funds in court to any persons described in the judgment or order, or in a certificate of an associate Judge of the Supreme Court, as partners, or as trading or carrying on business in the name of a firm, then, unless the judgment or order otherwise directs, the registrar may pay the funds to any one or more of those persons or to their survivors.

rule 41.13: Am 2005 (625), Sch 1 [14].

41.14 Payment to executors or administrators (cf SCR Part 50, rule 11)

(1)  If:

(a)  by any judgment or order, the court directs the payment of funds in court to any persons described in the judgment or order, or in a certificate of an associate Judge of the Supreme Court, as executors or administrators, and

(b)  it appears to the registrar:

(i)  that one or more of them has died since the date on which the judgment or order took effect, or

(ii)  that one or more of them had died on or before the date on which the judgment or order took effect, but is described in the judgment, order or certificate as an executor of the will or administrator of the estate of a creditor, shareholder or debenture holder,

then, unless the judgment or order otherwise directs, the registrar may pay the funds to their survivors.

(2)  If:

(a)  by any judgment or order, the court directs the payment of funds in court to any persons described in the judgment or order, or in a certificate of an associate Judge of the Supreme Court, as executors or administrators, and

(b)  the funds in court total less than $200,

then, unless the judgment or order otherwise directs, the registrar may pay the funds to any of them.

rule 41.14: Am 2005 (625), Sch 1 [15] [16].

41.15 Discharge of registrar (cf SCR Part 50, rule 8)

(1)  Any person entitled to payment of funds in court may request the registrar to send the person a cheque for the payment to a specified address.

(2)  Payment, by the bank on which it is drawn, of a cheque sent in accordance with such a request is taken to be a discharge to the registrar for the amount of the payment.

(3)  Subject to subrule (2), any direction, cheque or other document for the payment of money out of court is taken, when signed by the payee, to be a discharge to the registrar for the amount of the payment.

(4)  Nothing in subrule (2) or (3):

(a)  prevents the registrar from requiring a receipt for any payment made by the registrar, or

(b)  affects the operation of the Stamp Duties Act 1920 or the Duties Act 1997.

41.16 Stop orders (cf SCR Part 47, rule 3)

(1)  This rule applies to funds in the Supreme Court.

(2)  If:

(a)  the interest of any person in any funds in court has been mortgaged, charged or assigned, or

(b)  a person having an interest in any funds in court is a debtor under a judgment or order of the court,

the court may, on application by the mortgagee, chargee, assignee or creditor under the judgment or order, make an order prohibiting the transfer, sale, delivery out, payment or other dealing in respect of the whole or any part of the funds, or of any income derived from the funds, without notice to the applicant.

(3)  An application under subrule (2) is to be made:

(a)  if there are proceedings in the court in relation to the funds, by notice of motion in the proceedings, or

(b)  in any other case, by summons joining as defendants all persons whose interests may be affected by the application.

(4)  The notice of motion or summons must be served on each person whose interest may be affected by the application, but not on any other person.

(5)  The court may, on terms, dispense with the joinder of any person as defendant and dispense with service on any person.

(6)  The court may order the applicant for an order under subrule (2) to pay the costs of any party to any proceedings in relation to which the funds are in court, or of any other person interested in the funds.

(7)  Subrule (6) does not affect the general powers of the Supreme Court as to costs.

Part 42 Costs

Division 1 Entitlement to costs

42.1 General rule that costs follow the event (cf SCR Part 52A, rule 11)

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

42.2 General rule as to assessment of costs (cf SCR Part 52A, rule 32; DCR Part 39A, rule 10; LCR Part 31A, rule 6)

Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis.

42.3 (Repealed)

rule 42.3: Am 2007 (580), Sch 1 [7]. Rep 2010 (172), Sch 1 [6].

42.4 Power to order maximum costs (cf SCR Part 52A, rule 35A)

(1)  The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.

(2)  A maximum amount specified in an order under subrule (1) may not include an amount that a party is ordered to pay because the party:

(a)  has failed to comply with an order or with any of these rules, or

(b)  has sought leave to amend its pleadings or particulars, or

(c)  has sought an extension of time for complying with an order or with any of these rules, or

(d)  has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap:

(i)  progress of the proceedings to trial or hearing, or

(ii)  trial or hearing of the proceedings.

(3)  An order under subrule (1) may include such directions as the court considers necessary to effect the just, quick and cheap:

(a)  progress of the proceedings to trial or hearing, or

(b)  trial or hearing of the proceedings.

(4)  If, in the court’s opinion, there are special reasons, and it is in the interests of justice to do so, the court may vary the specification of maximum recoverable costs ordered under subrule (1).

42.5 Indemnity costs (cf SCR Part 52A, rule 37)

If the court determines that costs are to be paid on an indemnity basis:

(a)  in the case of costs payable out of property held or controlled by a person who is a party to the proceedings:

(i)  in the capacity of trustee, executor, administrator or legal representative of a deceased estate, or

(ii)  in any other fiduciary capacity,

all costs (other than those that have been incurred in breach of the person’s duty in that capacity) are to be allowed, and

(b)  in any other case, all costs (other than those that appear to have been unreasonably incurred or appear to be of an unreasonable amount) are to be allowed.

42.6 Amendment of pleading etc without leave (cf SCR Part 52A, rule 15)

Unless the court orders otherwise, a party that amends a pleading or summons without leave must, after the conclusion of the proceedings, pay the costs of and occasioned by the amendment.

42.7 Interlocutory applications and reserved costs (cf SCR Part 52A, rule 16; DCR Part 39A, rule 22; LCR Part 31A, rule 17)

(1)  Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:

(a)  costs that are reserved, and

(b)  costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

(2)  Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.

42.8 Dispute of fact subsequently proved or admitted

(1)  In this rule:

disputing party means the party who serves a notice disputing a fact under rule 17.3 (2).

fact in dispute means the fact that is the subject of a notice served under rule 17.3 (2).

requesting party means the party who is served with a notice disputing a fact under rule 17.3 (2).

(2)  Unless the court orders otherwise, the disputing party must, after the conclusion of proceedings in which a fact in dispute is subsequently proved or is subsequently admitted by the disputing party, pay the requesting party’s costs, assessed on an indemnity basis, being costs incurred by the requesting party:

(a)  in proving the fact, or

(b)  if the fact has not been proved—in preparation for the purpose of proving the fact.

(3)  An entitlement to costs under this rule is not affected by any order as to costs unless that order makes particular reference in that regard.

rule 42.8: Subst 2006 (96), Sch 1 [9].

42.9 Dispute of authenticity of document subsequently proved or admitted

(1)  In this rule:

disputing party means a party who serves a notice disputing the authenticity of a document under rule 17.4 (2) or 17.5 (3).

document in dispute means a document that is the subject of a notice served under rule 17.4 (2) or 17.5 (3).

requesting party means a party who is served with a notice disputing the authenticity of a document under rule 17.4 (2) or 17.5 (3).

(2)  Unless the court orders otherwise, the disputing party must, after the conclusion of proceedings in which the authenticity of a document in dispute is subsequently proved or is subsequently admitted by the disputing party, pay the requesting party’s costs, assessed on an indemnity basis, being costs incurred by the requesting party:

(a)  in proving the authenticity of the document, or

(b)  if the authenticity of the document has not been proved—in preparation for the purpose of proving the authenticity of the document.

(3)  An entitlement to costs under this rule is not affected by any order as to costs unless that order makes particular reference in that regard.

rule 42.9: Subst 2006 (96), Sch 1 [10].

42.10 Disobedience to rule, judgment, order or direction (cf SCR Part 52A, rule 25; DCR Part 39A, rule 4)

If a party fails to comply with a requirement of these rules, or of any judgment or order of the court, the court may order the party to pay such of the other parties’ costs as are occasioned by the failure.

42.11 Injunction (cf SCR Part 52A, rule 27)

(1)  Unless the court orders otherwise, an order as to costs with respect to an interlocutory injunction that continues an earlier interlocutory injunction, with or without modification, is to include the costs of the earlier injunction.

(2)  In this rule, interlocutory injunction means an interlocutory injunction granted by the Supreme Court, and includes a temporary injunction granted by the District Court under section 140 of the District Court Act 1973.

Division 2 Arbitration rehearings under Division 3 of Part 5 of Civil Procedure Act 2005

42.12 Rehearings under Division 3 of Part 5 of Civil Procedure Act 2005 (cf SCR Part 52A, rule 30)

(1)  In this rule:

party A means the party on whose application a rehearing has been conducted.

party B means any party to a rehearing other than party A.

rehearing means a rehearing conducted under Division 3 of Part 5 of the Civil Procedure Act 2005.

(2)  If the determination of the court is not substantially more favourable to party A than is the determination of the arbitrator, the court:

(a)  may not order party B to pay the costs incurred by party A by reason of the rehearing, and

(b)  must order party A to pay the costs incurred by party B by reason of the rehearing.

(3)  Despite subrule (2), the court may certify that the special circumstances of the case require the court:

(a)  to make an order referred to in subrule (2) (a), in which case the court may make that order, or

(b)  to refrain from making an order referred to in subrule (2) (b), in which case the court may refrain from making that order.

(4)  If, by operation of section 45 of the Civil Procedure Act 2005, an order for rehearing of proceedings ceases to have effect, party A must pay the costs of party B incurred by reason of the order for rehearing, unless the court orders otherwise.

(5)  Unless the court orders otherwise, any application for an order for costs must be made forthwith after the court gives the judgment, or makes the order, giving rise to the entitlement to the order for costs.

Division 3 Offers of compromise

42.13 Application

This Division applies to proceedings in respect of which an offer of compromise (the offer concerned) is made under rule 20.26 with respect to a plaintiff’s claim (the claim concerned).

42.13A Where offer accepted

(1)  This rule applies if the offer concerned:

(a)  is made by the plaintiff and accepted by the defendant, or

(b)  is made by the defendant and accepted by the plaintiff.

(2)  The plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim, assessed on the ordinary basis up to the time when the offer was made, unless:

(a)  the offer states that it is a verdict for the defendant and the parties are to bear their own costs, or

(b)  the court orders otherwise.

rule 42.13A: Ins 2005 (717), Sch 1 [10]. Am 2006 (96), Sch 1 [11].

42.14 Where offer not accepted and judgment no less favourable to plaintiff (cf SCR Part 52A, rule 22; DCR Part 39A, rule 25)

(1)  This rule applies if the offer concerned is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim concerned no less favourable to the plaintiff than the terms of the offer.

(2)  Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim:

(a)  assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and

(b)  assessed on an indemnity basis:

(i)  if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii)  if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.

42.15 Where offer not accepted and judgment as or less favourable to plaintiff (cf SCR Part 52A, rule 22; DCR Part 39A, rule 25; LCR Part 31A, rule 20)

(1)  This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim concerned as favourable to the plaintiff, or less favourable to the plaintiff, than the terms of the offer.

(2)  Unless the court orders otherwise:

(a)  the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and

(b)  the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim, assessed on an indemnity basis:

(i)  if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii)  if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.

42.15A Where offer not accepted and judgment as or more favourable to defendant (cf SCR Part 52A, rule 22; DCR Part 39A, rule 25; LCR Part 31A, rule 20)

(1)  This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim concerned as favourable to the defendant, or more favourable to the defendant, than the terms of the offer.

(2)  Unless the court orders otherwise:

(a)  the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and

(b)  the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim, assessed on an indemnity basis:

(i)  if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii)  if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.

rule 42.15A: Ins 2006 (716), Sch 1 [26].

42.16 Costs with respect to interest (cf SCR Part 52A, rule 22; DCR Part 39A, rule 25; LCR Part 31A, rule 20)

(1)  If a plaintiff obtains an order or judgment for the payment of a debt or damages and:

(a)  the amount payable under the order or for which judgment is given includes interest or damages in the nature of interest, or

(b)  the court, by a separate order, awards the plaintiff interest or damages in the nature of interest in respect of the amount,

then, for the purpose of determining the consequences as to costs referred to in rule 42.14, 42.15 or 42.15A, the court must disregard so much of the interest, or damages in the nature of interest, as relates to the period after the day on which the offer was made.

(2)  For the purpose only of this rule, the court may be informed of the fact that the offer was made, and of the date on which it was made, but must not be informed of its terms.

rule 42.16: Am 2007 (327), Sch 1 [11].

42.17 Miscellaneous (cf SCR Part 52A, rule 22 (10) and (11); DCR Part 39A, rule 25; LCR Part 31A, rule 20)

(1)  Before the court makes any order under rule 42.14 or 42.15, the party to whom the offer is made may request the party making the offer to satisfy the court that the party making the offer was at all material times willing and able to carry out the offer.

(2)  If the court is satisfied that the party making the offer was at all material times willing and able to carry out the offer, then, unless the court orders otherwise, the party making the request must pay such of the costs of the party to whom the request is made as have been occasioned by the request.

(3)  If the court is not satisfied that the party making the offer was at all material times willing and able to carry out the offer, then, unless the court orders otherwise:

(a)  rules 42.14 and 42.15 do not apply, and

(b)  the party to whom the request is made must pay the costs of the party making the request occasioned by the request.

(4)  Unless the court orders otherwise, any application for an order for costs under rule 42.14 or 42.15 must be made forthwith after the order or judgment giving rise to the entitlement to the order for costs is made or given.

Division 4 Offers to contribute

42.18 Offer to contribute (cf SCR Part 52A, rule 24; DCR Part 39A, rule 26; LCR Part 31A, rule 21)

If a party has made an offer to contribute, as referred to in rule 20.32, the court must take into account both the fact and the amount of the offer in exercising its discretion as to costs.

Division 5 Proceedings discontinued or dismissed

42.19 Proceedings discontinued (cf SCR Part 52A, rule 21; DCR Part 39A, rule 24; LCR Part 31A, rule 19)

(1)  This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1.

(2)  Unless the court orders otherwise or the notice referred to in rule 12.1 (2) otherwise provides, the plaintiff must pay such of the defendant’s costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued.

(3)  Despite subrule (2), the defendant’s costs in an appeal to the District Court under section 91 of the Children and Young Persons (Care and Protection) Act 1998 are not payable by the plaintiff unless the court finds there are special circumstances to justify an order for their payment by the plaintiff.

rule 42.19: Am 2005 (717), Sch 1 [11] [12]; 2008 (338), Sch 1 [16].

42.20 Dismissal of proceedings etc (cf SCR Part 40, rule 8)

(1)  If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed.

(2)  If the court makes an order striking out a defence, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the defendant must pay the plaintiff’s costs of the proceedings in relation to those matters in respect of which the defence has been struck out.

Division 6 Security for costs

42.21 Security for costs (cf SCR Part 53, rules 2, 3, 4 and 5; DCR Part 40, rule 1; LCR Part 31, rule 11A, Part 31A, rule 11)

(1)  If, in any proceedings, it appears to the court on the application of a defendant:

(a)  that a plaintiff is ordinarily resident outside New South Wales, or

(b)  that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or

(c)  that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or

(d)  that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or

(e)  that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so,

the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant’s costs of the proceedings and that the proceedings be stayed until the security is given.

(2)  Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.

(3)  If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff’s claim for relief in the proceedings be dismissed.

(4)  This rule does not affect the provisions of any Act under which the court may require security for costs to be given.

rule 42.21: Am 2005 (395), Sch 1 [49] [50].

Division 7 General

42.22 Money paid into court (cf SCR Part 52A, rule 18)

If a party has paid money into court, the court may, in exercising its discretion as to costs, take into consideration both the fact and the amount of the payment.

42.23 Costs in account (cf SCR Part 52A, rule 38)

If the court orders that an account be taken and the account consists in part of costs, the court may, by the same or a later order, direct the registrar to refer those costs for assessment.

42.24 Costs of solicitor appointed as tutor (cf SCR Part 52A, rule 41)

If the court appoints a solicitor to be the tutor of a person under legal incapacity in connection with any proceedings, the court:

(a)  may order that the costs incurred by the solicitor in performance of the duties of tutor be paid:

(i)  by the parties to the proceedings or any of them, or

(ii)  out of any fund in court in which the person under legal incapacity is interested, and

(b)  may make orders for the repayment or allowance of the costs as the case requires.

42.25 Costs of trustee or mortgagee (cf SCR Part 52A, rule 42)

(1)  Subject to subrule (2), a person who is or has been a party to any proceedings in the capacity of trustee or mortgagee is entitled to be paid his or her costs in the proceedings, in so far as they are not paid by any other person, out of the fund held by the trustee or out of the mortgaged property, as the case may be.

(2)  The court may order that the person’s costs not be so paid if:

(a)  the trustee or mortgagee has acted unreasonably, or

(b)  in the case of a trustee, the trustee has in substance acted for his or her own benefit rather than for the benefit of the fund.

42.26 Order confirming rule as to payment of costs (cf SCR Part 52A, rule 49; DCR Part 39A, rule 17; LCR Part 31A, rule 9)

If a party to proceedings in the court has become liable under these rules to pay any of the costs of the proceedings of any other party, the court may order the party so liable to pay those costs.

42.27 Attendance (cf SCR Part 42, rule 7)

(1)  If:

(a)  a person is ordered by the court, by subpoena or otherwise, to attend court:

(i)  for the purpose of giving evidence, or

(ii)  for the production of any document or thing, or

(iii)  to answer a charge of contempt, or

(iv)  for any other purpose, and

(b)  the person fails to attend in accordance with the order,

the court may order the person in default to pay any costs occasioned by the default.

(2)  If:

(a)  a corporation is ordered by the court, by subpoena or otherwise, to produce to the court any document or thing, and

(b)  the corporation fails to produce the document or thing in accordance with the order,

the court may order the corporation to pay any costs occasioned by the default.

(3)  This rule does not limit the power of the court to punish for contempt.

42.28 Orders as to costs in relation to instalment order (cf DCR Part 31A, rule 2 (7A); LCR Part 27, rule 2 (11))

If the court is of the opinion that a party has acted unreasonably in respect of the application for an instalment order, or for the variation or rescission of an instalment order, the court may order the party to pay the other party’s costs in relation to the application, or such part of those costs as the court thinks fit.

42.29 Patents, trade marks and designs (cf SCR Part 52A, rule 28)

(1)  This rule applies to proceedings in the Supreme Court.

(2)  If:

(a)  an action or counter-claim for infringement of a patent, of a registered trade mark, or of the monopoly in a registered design, or

(b)  an application or counter-claim for revocation of a patent, or

(c)  an application for cancellation of the registration of a design or counter-claim for the rectification of the Register of Designs,

proceeds to hearing, costs are not to be allowed to the parties delivering any particulars of breaches, or of objections in respect of any questions raised in those particulars and relating to that patent, trade mark or design, except in so far as those questions or particulars are certified by the Supreme Court to have been proved or to have been reasonable and proper.

42.30 Property (Relationships) Act 1984 (cf SCR Part 52A, rules 34 and 35)

(1)  This rule applies to proceedings in the Supreme Court or the District Court in which the plaintiff commences proceedings for an order or relief under the Property (Relationships) Act 1984 and the court:

(a)  in relation to property, declares a right or adjusts an interest, or

(b)  makes an order for maintenance,

of a value or amount that does not exceed the jurisdictional limit of the Local Court sitting in its General Division, as that limit was when the proceedings were commenced.

(2)  Unless the court orders otherwise, the plaintiff is not entitled to payment of his or her costs of the proceedings.

(3)  On the application of any person, the court may order that this rule does not apply in respect of any proceedings, including proceedings yet to be commenced.

(4)  If an order is made under subrule (3) in respect of proceedings to be commenced, the originating process by which the proceedings are later commenced must bear a note of the order made.

42.31 Recovery of assessed costs in Supreme Court (cf SCR Part 52A, rule 46)

(1)  A person is not entitled to his or her costs of proceedings in the Supreme Court (including costs of execution) to recover payment of costs included in a cost assessor’s certificate unless:

(a)  at the time of filing the certificate the amount of unpaid costs included in the certificate exceeds $150,000, or

(b)  it appearing to the Court that the person had sufficient reason for filing the certificate in the Court, the Court orders otherwise.

(2)  A party may apply for an order under subrule (1) without serving notice of motion.

(3)  If the applicant for an order under subrule (1) adds to the motion a request that the application be granted in accordance with this subrule, the Supreme Court may make the order in the absence of the public and without any attendance by or on behalf of the applicant.

(4)  A person is not entitled to his or her costs of filing a cost assessor’s certificate in the Supreme Court.

Note—

See also rule 36.10 in relation to the filing of cost assessors’ certificates.

42.32 Smyth orders

At any stage of proceedings, the court may order a party’s legal representative to serve on the party:

(a)  a notice that specifies:

(i)  an estimate of the largest amount (inclusive of costs) for which judgment is likely to be given if the party is successful, and

(ii)  an estimate of the largest amount (by way of costs) that the party may be ordered to pay if the party is unsuccessful, or

(b)  a notice that specifies:

(i)  an estimate of the best outcome that the party is likely to achieve if the party is successful, and

(ii)  an estimate of the worst outcome that the party is likely to undergo if the party is unsuccessful.

rule 42.32: Ins 2005 (395), Sch 1 [51].

42.33 Certain costs orders not to be made unless parties have attempted to agree on amount

Unless the court otherwise orders, an order as to costs is not to be made under rule 21.13, 33.11 or 34.3 if the court is not satisfied that the parties concerned have attempted, but failed, to agree on the amount of costs to be paid in relation to the matter for which such an order may be made under that rule.

rule 42.33: Ins 2007 (327), Sch 1 [12].

42.34 Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court

(1)  This rule applies if:

(a)  in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and

(b)  the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.

(2)  An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted.

rules 42.34, 42.35: Ins 2010 (528), Sch 1.

42.35 Costs order not to be made in proceedings in District Court unless Court satisfied proceedings in appropriate court

(1)  This rule applies if:

(a)  in proceedings in the District Court, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $40,000, and

(b)  the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.

(2)  An order for costs may be made, but will not ordinarily be made, unless the District Court is satisfied the commencement and continuation of the proceedings in the District Court, rather than the Local Court, was warranted.

rules 42.34, 42.35: Ins 2010 (528), Sch 1.

Part 43 Interpleader proceedings

Division 1 Preliminary

43.1 Definitions (cf SCR Part 56, rule 1)

In this Part:

claimant means a person by whom a stakeholder or the Sheriff is being sued, or expects to be sued, in proceedings before a court.

disputed property means any debt or other personal property in respect of which a stakeholder or the Sheriff is being sued, or expects to be sued, by two or more persons in proceedings before a court.

execution creditor means a person on whose behalf a writ of execution is issued.

notice of admission means a notice referred to in rule 43.3 (4).

notice of claim means a notice of claim referred to in rule 43.3 (1).

stakeholder means a person (other than the Sheriff) who is under a liability in respect of a debt or other personal property.

Division 2 Stakeholder’s interpleader

43.2 Court may grant interpleader on application by stakeholder (cf SCR Part 56, rules 2, 3 and 4; Act No 9 1973, section 115; DCR Part 42, rule 2; Act No 11 1970, sections 65 and 67)

(1)  If, in relation to disputed property, a stakeholder is sued, or expects to be sued, in any court by two or more claimants, the court may, on application by the stakeholder, grant relief by way of interpleader.

(2)  Such an application is to be made:

(a)  if, in proceedings in the court, the stakeholder has been sued by a claimant in respect of the disputed property, by motion in the proceedings, or

(b)  in any other case, by separate proceedings in the court, joining each claimant as a defendant.

(3)  With the application must be filed an affidavit to the effect that the applicant:

(a)  claims no interest in the subject-matter in dispute other than for charges or costs, and

(b)  is not in collusion with any claimant, and

(c)  is willing to pay or transfer the subject-matter in dispute into court or, if the court so requires, to give security to the value of the subject-matter to the satisfaction of the court.

(4)  A stakeholder applying under subrule (2) (a) must serve notice of motion:

(a)  on each party to the proceedings who claims an interest in the disputed property, and

(b)  on each claimant who is not a party to the proceedings.

(5)  In relation to a claimant referred to in subrule (4) (b), the notice of motion must be served personally.

Division 3 Sheriff’s interpleader

43.3 Notice of claim by claimant (cf SCR Part 56, rule 5; Act No 9 1973, section 116; Act No 11 1970, sections 65 and 66)

(1)  If the Sheriff takes or intends to take possession of any disputed property under a writ of execution, a claimant in respect of the property, or the proceeds of sale or value of the property, may give notice of his or her claim to the Sheriff.

(2)  A notice of claim:

(a)  must specify the claim, and

(b)  must state the claimant’s name and residential address, and

(c)  must state the claimant’s address for service, and

(d)  must be accompanied by a copy of the notice.

(3)  On receiving a notice of claim, the Sheriff must serve the notice on the execution creditor.

(4)  The execution creditor may serve on the Sheriff a notice to the effect that the execution creditor admits the claim set out in a notice of claim.

43.4 Sheriff may apply for claimant’s proceedings to be restrained or stayed (cf SCR Part 56, rules 5 and 6; Act No 9 1973, section 116; Act No 11 1970, section 67)

(1)  This rule applies if a claimant does not give a notice of claim within a reasonable time after becoming aware that the Sheriff has taken or intends to take possession of the disputed property.

(2)  On application by the Sheriff, the court may restrain the claimant from commencing or continuing proceedings against the Sheriff in respect of anything done, or omitted to be done, by the Sheriff in execution of any writ of execution after the time when the claimant might reasonably have given a notice of claim.

(3)  The Sheriff may apply for an order under this rule:

(a)  if proceedings referred to in subrule (2) have been commenced against the Sheriff in the court, by motion in those proceedings, or

(b)  in any other case, by motion in the proceedings in which the writ of execution was issued.

(4)  Notice of an application under this rule must be served personally on the claimant.

43.5 Admission of claim (cf SCR Part 56, rule 7; DCR Part 42, rule 1)

(1)  This rule applies if an execution creditor serves a notice of admission on the Sheriff with respect to any disputed property.

(2)  On receiving such a notice, the Sheriff must withdraw from possession of the disputed property.

(3)  On the application of the Sheriff, the court may make an order restraining the claimant from commencing or continuing proceedings in any court against the Sheriff in respect of anything done, or omitted to be done, by the Sheriff in execution of the writ of execution in relation to the disputed property.

(4)  The Sheriff may apply for an order under this rule:

(a)  if proceedings referred to in subrule (3) have been commenced against the Sheriff in the court, by motion in those proceedings, or

(b)  in any other case, by motion in the proceedings in which the writ of execution was issued.

(5)  Notice of an application under this rule must be served personally on the claimant.

43.6 Interpleader motion (cf SCR Part 56, rule 8; LCR Part 32, rules 2 and 3)

(1)  If an execution creditor on whom a notice of claim is served does not, within 4 days after service of the notice, serve a notice of admission on the Sheriff, and the claim is not withdrawn, the court may make an order granting relief by way of interpleader.

(2)  The Sheriff may apply for such an order by motion in the proceedings in which the writ of execution was issued.

(3)  Notice of an application under this rule must be served:

(a)  on each party to the proceedings who claims an interest in the disputed property, and

(b)  on each claimant who is not a party to the proceedings.

(4)  Service on a claimant referred to in subrule (3) (b) must be effected personally.

Division 4 General

43.7 Powers generally (cf SCR Part 56, rule 9; DCR Part 42, rule 4)

(1)  On application under Division 2 or 3 for relief by way of interpleader, the court may make such orders and directions as it thinks fit for the hearing and determination of all matters in dispute.

(2)  Without limiting subrule (1), the court may do any of the following:

(a)  if proceedings in the court are pending in which the applicant is sued for or in respect of any of the disputed property, it may order that any claimant be added as a defendant in those proceedings in addition to or in substitution for the applicant, or order that those proceedings be stayed or dismissed,

(b)  if proceedings in any other court are pending in which the applicant is sued for or in respect of any of the disputed property, it may order that further continuance of those proceedings be stayed,

(c)  it may order the applicant to pay or transfer any or all of the disputed property into court or otherwise to dispose of any or all of the disputed property,

(d)  if a claimant claims to be entitled by way of security for debt to any or all of the disputed property, it may make orders for the sale of any or all of the disputed property and for the application of the proceeds of sale,

(e)  on request by any party, it may summarily determine any or all questions of fact or law in which the requesting party is interested arising on the application,

(f)  it may make orders for the settlement and trial of questions,

(g)  it may make such other order, or give such other judgment, as the nature of the case requires.

(3)  A stay granted under subrule (2) (b) may be revoked by the court by which it was granted or by the court in which the stayed proceedings are pending.

43.8 Default by claimant (cf SCR Part 56, rule 10; DCR Part 42, rule 5; Act No 11 1970, section 67)

(1)  If a claimant:

(a)  has been given due notice of the hearing of an application for relief by way of interpleader and does not appear at the hearing, or

(b)  does not comply with an order made in the proceedings on such an application,

the court may order that the claimant, and those claiming under the claimant, be barred from prosecuting the claim against the applicant and those claiming under the applicant.

(2)  An order under subrule (1) does not affect the rights of the claimants as between themselves.

43.9 Neutrality of applicant (cf SCR Part 56, rule 11)

(1)  If a stakeholder applies for relief by way of interpleader, the court may dismiss the application or give judgment against the applicant unless the court is satisfied that the applicant:

(a)  claims no interest in the disputed property, except for charges or costs, and

(b)  is not in collusion with any claimant.

(2)  If the Sheriff applies for relief by way of interpleader, the court:

(a)  may require the Sheriff to satisfy the court as to the matters referred to in subrule (1), and

(b)  if not satisfied on those matters, may dismiss the application.

(3)  Nothing in this rule affects the power of the court in other cases to dismiss the application or to give judgment against the applicant.

43.10 Order in multiple proceedings (cf SCR Part 56, rule 12)

(1)  If an application for relief by way of interpleader is made, and multiple proceedings are pending in the court for or in respect of any or all of the disputed property, the court may make an order in any two or more of those proceedings.

(2)  An order under subrule (1) is binding on all of the parties to all of the proceedings in which it is made.

43.11 Trial of questions arising in proceedings for interpleader (cf SCR Part 56, rule 13)

(1)  Subject to any order or direction of the court, the provisions of Part 6 of the Civil Procedure Act 2005 and of this Part, with any necessary modifications, extend to the trial of any question that the court directs to be tried in any proceedings for relief by way of interpleader.

(2)  The court before which a question is tried as referred to in subrule (1) may make such order, or give such judgment, as the case requires, including an order or judgment finally disposing of all questions arising in the proceedings.

Part 44 Transfer of proceedings

Division 1

44.1  (Repealed)

pt 44, div 1 (rule 44.1): Rep 2007 (579), Sch 2 [8].

Division 2 Cross-vesting laws

44.2 Definitions (cf SCR Part 74, rule 4)

(1)  In this Division, a cross-vesting Act means the Jurisdiction of Courts (Cross-vesting) Act 1987 or the Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth.

(2)  Expressions used in this Division have, in relation to proceedings under a cross-vesting Act, the same meaning as in that Act.

(3)  In this Division, a reference to a provision of a cross-vesting Act is a reference to a provision of the Jurisdiction of Courts (Cross-vesting) Act 1987, and extends to the corresponding provision of the Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth.

44.3 Mode of application (cf SCR Part 74, rule 5)

Any application for an order under any provision (except section 8) of the relevant cross-vesting Act is to be made by motion in the proceedings pending in the Supreme Court.

44.4 Attorney-General (cf SCR Part 74, rule 7)

If an application for the transfer of proceedings pending in the Supreme Court is made by the Attorney-General of the Commonwealth, or of a State or Territory under the relevant cross-vesting Act, the Attorney-General does not, by reason of the application, become a party to those proceedings.

44.5 Application relating to transfer (cf SCR Part 74, rule 8)

If a party to any proceedings in the Supreme Court intends to contend that:

(a)  the Court should exercise jurisdiction pursuant to any provision of a cross-vesting Act or of any other law of the Commonwealth or a State relating to cross-vesting of jurisdiction, or

(b)  that the Court should transfer the proceedings to another Court pursuant to any such provision,

the party must, on or as soon as practicable after commencement of the proceedings, apply to the Court for a determination of the question whether or not the proceedings should be transferred to another Court.

44.6 Application of other laws or rules (cf SCR Part 74, rule 9)

(1)  Where a party wishes to contend that the Supreme Court should, under section 11 (1) (b) or (c) of the relevant cross-vesting Act, apply the written law of another State or Territory or the rules of evidence or procedure other than those applied in New South Wales, the party must, as soon as practicable:

(a)  file notice of the contention, specifying the law or rules and stating the grounds relied upon in support of the contention, and

(b)  forthwith after filing the notice, serve it on each other party.

(2)  The Supreme Court may, on the application of a party to the proceedings or of its own motion, give directions in relation to the application of a law or rule under section 11 (1) (b) or (c) of the relevant cross-vesting Act.

Division 3 Transfers under other legislation

44.7 Proceedings after transfer etc to the Court (cf SCR Part 74, rule 1)

(1)  Subject to any order of the Supreme Court, proceedings that are transferred, removed or remitted to the Supreme Court from any other court are to be assigned to the Division and list to which they would have been assigned had they been commenced in the Supreme Court.

(2)  If proceedings are transferred, removed or remitted by agreement, pursuant to an Act that allows proceedings to be transferred, removed or remitted by agreement, the parties must reduce the agreement to writing and the agreement is to be included in the record of the proceedings.

44.8 Directions and service of order (cf SCR Part 74, rule 3)

If the Supreme Court makes an order under any Act (other than an order under Part 9 of the Civil Procedure Act 2005) for proceedings in another court to be transferred, removed or remitted to the Supreme Court, the registrar of the Supreme Court must serve a sealed copy of the order on the registrar or other officer having responsibility for the records or process of that other court.

Part 45 Specialist lists

Division 1 Supreme Court specialist lists

pt 45, div 1: Ins 2006 (391), Sch 1 [12].

45.1 Entry as indicated by originating process

(1)  If the originating process in proceedings in the Common Law Division of the Supreme Court indicates that the proceedings are intended to be entered in one of the following lists, the proceedings are to be entered in that list:

The Administrative Law List

The Defamation List

The Possession List

The Professional Negligence List

(2)  If the originating process in proceedings in the Equity Division of the Supreme Court indicates that the proceedings are intended to be entered in one of the following lists, the proceedings are to be entered in that list:

The Admiralty List

The Commercial List

The Technology and Construction List

The Protective List

The Revenue List

(3)  If proceedings are commenced by an originating process under the Supreme Court (Corporations) Rules 1999, the proceedings are to be entered in the Corporations List in the Equity Division of the Supreme Court.

(4)  In this Division, the lists referred to in subrules (1), (2) and (3) are referred to as specialist lists.

rule 45.1: Ins 2006 (391), Sch 1 [12]. Am 2006 (716), Sch 1 [27]; 2007 (501), Sch 1 [6].

45.2 Entry and removal of proceedings pursuant to order of Supreme Court

Proceedings are to be entered in, or removed from, a specialist list if the Supreme Court so orders.

rules 45.2, 45.3: Ins 2006 (391), Sch 1 [12].

45.3 The Administrative Law List (cf SCR Part 14D, rule 1)

(1)  The following proceedings in the Supreme Court are to be entered in the Administrative Law List:

(a)  proceedings for commanding or otherwise requiring a public body or a public officer to perform a public duty,

(b)  proceedings for prohibiting or otherwise restraining a public body or a public officer from performing or purporting to perform any act,

(c)  proceedings for determining by declaration or otherwise any matter concerning the powers of a public body or a public officer,

(d)  proceedings in appeals or applications to the Court in respect of decisions of a public body or a public officer under any enactment specified in the rules for the purposes of this subrule.

(2)  In this rule:

prescribed tribunal means:

(a)  a specified tribunal within the meaning of section 48 of the Supreme Court Act 1970, or

(b)  the Local Court, or

(c)  a magistrate, coroner or assistant coroner, or

(d)  any other tribunal, person or body of persons prescribed, or belonging to a class prescribed for the purposes of this definition.

public body means a body of persons, whether corporate or unincorporate, constituted by or under an Act and required to perform or performing public duties, but does not include a prescribed tribunal.

public officer means a person holding or acting in a public office under the Government of the State or an office created by or under an Act and required to perform or performing public duties, but does not include a prescribed tribunal.

rules 45.2, 45.3: Ins 2006 (391), Sch 1 [12].

45.4 The Possession List (cf SCR Part 14B, rules 1 and 2)

(1)  Proceedings in the Common Law Division of the Supreme Court in which a claim for possession of land is made are to be entered in the Possession List.

(2)  Subrule (1) does not apply to:

(a)  proceedings that involve a professional negligence claim, being proceedings entered in the Professional Negligence List, or

(b)  proceedings that involve an appeal against, or an application for a stay of, an order made by the Consumer, Trader and Tenancy Tribunal under the Residential Tenancies Act 1987.

rule 45.4: Ins 2006 (391), Sch 1 [12]. Am 2007 (327), Sch 1 [13].

45.5 The Professional Negligence List (cf SCR Part 14C, rule 1)

(1)  Proceedings in the Common Law Division of the Supreme Court in which a professional negligence claim is made may be entered in the Professional Negligence List.

(2)    (Repealed)

rule 45.5: Ins 2006 (391), Sch 1 [12]. Am 2007 (327), Sch 1 [14].

45.6 The Commercial List (cf SCR Part 14, rule 1)

(1)  The following proceedings in the Equity Division of the Supreme Court may be entered in the Commercial List:

(a)  proceedings arising out of commercial transactions,

(b)  proceedings in which there is an issue that has importance in trade or commerce.

(2)  In this rule, issue includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

rules 45.6, 45.7: Ins 2006 (391), Sch 1 [12].

45.7 The Technology and Construction List (cf SCR Part 14A, rule 1)

(1)  The following proceedings in the Equity Division of the Supreme Court may be entered in the Technology and Construction List:

(a)  proceedings relating to or arising out of:

(i)  the design, carrying out, supervision or inspection of any building or engineering work, or

(ii)  the performance by any building or engineering expert of any other services with respect to any building or engineering work, or

(iii)  any certificate, advice or information given or withheld with respect to any building or engineering work, or

(iv)  the Building and Construction Industry Security of Payment Act 1999,

(b)  proceedings relating to or arising out of, or the determination of which involves, the design, acquisition, disposal or operation of technology in commercial transactions or in transactions involving Government,

(c)  proceedings on a claim for rectification, setting aside or cancellation of any agreement with respect to matters mentioned in paragraph (a) or (b).

(2)  In this rule:

building or engineering expert includes a builder, engineer, architect, designer and quantity surveyor.

building or engineering work includes:

(a)  any intended building or engineering work, and

(b)  any building or engineering work in the course of construction or completion or which has been substantially or fully completed, and

(c)  any associated work.

rules 45.6, 45.7: Ins 2006 (391), Sch 1 [12].

45.7A The Revenue List

The following proceedings in the Equity Division of the Supreme Court may be entered in the Revenue List:

(a)  proceedings in which:

(i)  the Commissioner of Taxation, or a Second Commissioner of Taxation or Deputy Commissioner of Taxation, in and for the Commonwealth, or

(ii)  the holder of an equivalent office in and for a jurisdiction outside Australia,

is a party,

(b)  proceedings in which:

(i)  the Chief Commissioner of State Revenue, or the Commissioner of State Revenue, in and for New South Wales, or

(ii)  the holder of an equivalent office in and for a jurisdiction outside New South Wales,

is a party,

(c)  proceedings in which an issue has arisen in relation to a law under which the holder of an office referred to in paragraph (a) or (b) exercises functions.

rule 45.7A: Ins 2006 (716), Sch 1 [28]. Am 2007 (164), Sch 1 [11].

45.8 Proceedings under particular Acts and instruments (cf SCR Part 12, rule 1)

Proceedings in the Supreme Court:

(a)  under an Act or instrument referred to in Column 1 of Part 1 or 2 of Schedule 8, or

(b)  under a provision referred to in Column 2 of that Part in respect of any such Act or instrument,

are to be entered in the list (if any) referred to in Column 4 of that Part in respect of that Act, instrument or provision.

rule 45.8: Ins 2006 (391), Sch 1 [12].

Division 2 District Court specialist lists

pt 45, div 2: Ins 2006 (391), Sch 1 [12].

45.9 Specialist lists

The following specialist lists operate in the District Court:

The Child Care List

The Coal Miners’ Workers Compensation List

The Construction List

The Commercial List

The Defamation List

The Professional Negligence List

The Property Relationships List

The Special Statutory Compensation List

rules 45.9, 45.10: Ins 2006 (391), Sch 1 [12]. Subst 2009 (569), Sch 1 [7].

45.10 Entry as indicated by originating process

(1)  If the originating process in proceedings in the District Court indicates that the proceedings are intended to be entered in one of the following lists (or, where the originating process contains no such indication, if the defence so indicates) the proceedings are to be entered in that list:

The Child Care List

The Coal Miners’ Workers Compensation List

The Defamation List

The Special Statutory Compensation List

(2)  Proceedings are to be entered in, or removed from, a specialist list in subrule (1) if the court so orders.

rules 45.9, 45.10: Ins 2006 (391), Sch 1 [12]. Subst 2009 (569), Sch 1 [7].

45.11 The Construction List (cf DCR Part 24A, rules 1, 2 and 3)

(1)  The following proceedings in the District Court may be entered in, or removed from, the Construction List if the court so orders:

(a)  proceedings relating to or arising out of:

(i)  the design, carrying out, supervision or inspection of any building or engineering work, or

(ii)  the performance by any building or engineering expert of any other services with respect to any building or engineering work, or

(iii)  any certificate, advice or information given or withheld with respect to any building or engineering work, or

(iv)  the Building and Construction Industry Security of Payment Act 1999,

(b)  proceedings relating to or arising out of, or the determination of which involves, the design, acquisition, disposal or operation of technology in commercial transactions or in transactions involving Government,

(c)  proceedings on a claim for rectification, setting aside or cancellation of any agreement with respect to matters mentioned in paragraph (a) or (b).

(2)  In this rule:

building or engineering expert includes a builder, engineer, architect, designer and quantity surveyor.

building or engineering work includes:

(a)  any intended building or engineering work, and

(b)  any building or engineering work in the course of construction or completion or which has been substantially or fully completed, and

(c)  any associated work.

rule 45.11: Ins 2006 (391), Sch 1 [12]. Am 2009 (569), Sch 1 [8].

45.12 The Commercial List (cf DCR Part 24B, rules 2 and 3)

(1)  The following proceedings in the District Court may be entered in, or removed from, the Commercial List if the court so orders:

(a)  proceedings arising out of commercial transactions,

(b)  proceedings in which there is an issue that has importance in trade or commerce.

(2)  This rule does not apply to proceedings that may be entered in the Construction List.

(3)  In this rule, issue includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

rule 45.12: Ins 2006 (391), Sch 1 [12]. Am 2009 (569), Sch 1 [9].

45.13 The Professional Negligence List (cf SCR Part 14C, rule 1)

(1)  Proceedings in the District Court in which a professional negligence claim is made may be entered in, or removed from, the Professional Negligence List if the court so orders.

(2)    (Repealed)

rule 45.13: Ins 2006 (391), Sch 1 [12]. Am 2007 (327), Sch 1 [15]; 2009 (569), Sch 1 [10].

45.13A The Property Relationships List

Proceedings in the District Court under the Property (Relationships) Act 1984 or Chapter 3 of the Succession Act 2006 may, subject to any relevant practice note, be entered in, or removed from, the Property Relationships List if the court so orders.

rule 45.13A: Ins 2009 (569), Sch 1 [11].

45.14 Proceedings under particular Acts and instruments

Proceedings in the District Court:

(a)  under an Act or instrument referred to in Column 1 of Part 1 or 2 of Schedule 9, or

(b)  under a provision referred to in Column 2 of that Part in respect of such an Act or instrument,

are to be entered in the list (if any) referred to in Column 3 of that Part in respect of that Act, instrument or provision.

rule 45.14: Ins 2006 (391), Sch 1 [12].

Part 46 Accounts and inquiries

pt 46: Ins 2006 (391), Sch 1 [12].

Division 1 General

pt 46, div 1 (rules 46.1–46.9): Ins 2006 (391), Sch 1 [12].

46.1 Application of Part (cf SCR Part 49, rule 1)

(1)  This Part applies to accounts, inquiries and other matters under an order in the same way as it applies to accounts, inquiries and other matters under a judgment.

(2)  In the application of this Part to accounts, inquiries and other matters under an order:

(a)  references in this Part to a judgment extend to an order, and

(b)  references in this Part to the giving of judgment extend to the making of an order.

pt 46, div 1 (rules 46.1–46.9): Ins 2006 (391), Sch 1 [12].

46.2 Account: summary order (cf SCR Part 48, rule 1)

(1)  If a party claims an account or makes a claim which involves taking an account, the court may, on application by that party at any stage of the proceedings:

(a)  order that an account be taken, and

(b)  order that any amount certified on taking the account to be due to any party be paid to him or her.

(2)  The court may not make an order under subrule (1) (a):

(a)  against a defendant who has not filed an appearance, unless he or she is in default of appearance, or

(b)  if it appears that there is some preliminary question to be determined.

pt 46, div 1 (rules 46.1–46.9): Ins 2006 (391), Sch 1 [12].

46.3 Account or inquiry at any stage (cf SCR Part 48, rule 2)

The court may make orders for the taking of any account or the making of any inquiry.

pt 46, div 1 (rules 46.1–46.9): Ins 2006 (391), Sch 1 [12].

46.4 Account: directions (cf SCR Part 48, rule 3)

If the court makes an order for the taking of an account, the court, by the same or a subsequent order:

(a)  may give directions concerning the manner of taking or vouching the account, and

(b)  without limiting paragraph (a), may direct that in taking the account the relevant books of account are taken to be evidence of the matters contained in them.

pt 46, div 1 (rules 46.1–46.9): Ins 2006 (391), Sch 1 [12].

46.5 Account: form and verification (cf SCR Part 48, rule 4)

(1)  The items on each side of an account must be numbered consecutively.

(2)  Unless the court otherwise orders, an accounting party must verify his or her account by affidavit and the account must be made an exhibit to the affidavit.

pt 46, div 1 (rules 46.1–46.9): Ins 2006 (391), Sch 1 [12].

46.6 Account: filing and service (cf SCR Part 48, rule 5)

Unless the court otherwise orders, an accounting party must file his or her account and verifying affidavit.

pt 46, div 1 (rules 46.1–46.9): Ins 2006 (391), Sch 1 [12].

46.7 Account: notice of charge or error (cf SCR Part 48, rule 6)

(1)  If a party seeks to charge an accounting party with an amount beyond that in respect of which the accounting party by his or her account admits receipt, he or she must give to the accounting party notice of the charge, stating, so far as he or she is able, the amount that he or she seeks to charge, with brief particulars.

(2)  If a party alleges that any item in the account of an accounting party is erroneous in amount or otherwise, he or she must give to the accounting party notice of the allegation, stating the grounds for alleging the error.

pt 46, div 1 (rules 46.1–46.9): Ins 2006 (391), Sch 1 [12].

46.8 Account: allowances (cf SCR Part 48, rule 7)

In taking an account under a judgment, all just allowances must be made.

pt 46, div 1 (rules 46.1–46.9): Ins 2006 (391), Sch 1 [12].

46.9 Delay (cf SCR Part 48, rule 8)

If it appears to the court that there is delay in the prosecution of any account, inquiry or other matter under a judgment, the court may make such orders as it thinks fit for staying or expediting the proceedings or for the conduct of the proceedings.

pt 46, div 1 (rules 46.1–46.9): Ins 2006 (391), Sch 1 [12].

Division 2 Equity Division of the Supreme Court: General

pt 46, div 2: Ins 2006 (391), Sch 1 [12].

46.10 Application (cf SCR Part 49, rule 1)

This Division applies to proceedings in the Equity Division of the Supreme Court, other than proceedings entered in the following lists:

(a)  the Admiralty List,

(b)  the Commercial List,

(c)  the Probate List,

(d)  the Protective List,

(e)  the Technology and Construction List.

rules 46.10–46.16: Ins 2006 (391), Sch 1 [12].

46.11 Motion to proceed (cf SCR Part 49, rule 2)

If a judgment contains directions as to any account, inquiry or other matter under the judgment, any party may, after entry of the judgment, move the Supreme Court to proceed under the judgment.

rules 46.10–46.16: Ins 2006 (391), Sch 1 [12].

46.12 Notice of judgment (cf SCR Part 49, rule 3)

(1)  This rule applies to a judgment in proceedings for:

(a)  the administration of the estate of a deceased person, or

(b)  the execution of a trust, or

(c)  the sale of property.

(2)  If the Supreme Court gives a judgment:

(a)  affecting the rights or interests of a person who is not a party, or

(b)  for the taking of an account or the making of an inquiry,

the Court may, by the judgment or by subsequent order:

(c)  give directions for service of notice of the judgment on any person interested, or

(d)  if it appears to be impracticable to serve notice of the judgment on any person interested, dispense with service on him or her.

(3)  Without limiting subrule (2) (c), the Supreme Court may direct that notice be served personally or in some other manner.

(4)  If, under this rule, notice of a judgment is served on a person, or the Supreme Court dispenses with service of notice of a judgment on a person:

(a)  subject to paragraph (b), he or she is bound by the judgment to the same extent as if he or she were a party at the time when the judgment was given, except where the judgment has been obtained by fraud or non-disclosure of material facts,

(b)  the Court may, on application by him or her on notice of motion filed within the time limited by subrule (5), discharge or vary the judgment or order,

(c)  he or she may attend the accounts, inquiries or other matters under the judgment.

(5)  Notice of a motion under subrule (4) (b) must be filed:

(a)  if notice of the judgment has been served on the applicant, within 28 days after the date of service, and

(b)  if the Supreme Court has dispensed with service of notice of the judgment on him or her, within 28 days after the date of the order dispensing with service.

rules 46.10–46.16: Ins 2006 (391), Sch 1 [12].

46.13 Directions (cf SCR Part 49, rule 4)

On the hearing of a motion to proceed under a judgment, the Supreme Court may give directions as to the conduct of the proceedings, including directions as to the material that may be used as evidence.

rules 46.10–46.16: Ins 2006 (391), Sch 1 [12].

46.14 Representation of parties (cf SCR Part 49, rule 5)

On the hearing of a motion to proceed under a judgment or subsequently, the Supreme Court:

(a)  may require parties whose interests are similar to be represented by the same solicitor and nominate a solicitor to represent them, or

(b)  may require that parties represented by the same solicitor be separately represented.

rules 46.10–46.16: Ins 2006 (391), Sch 1 [12].

46.15 Costs of attendance (cf SCR Part 49, rule 6)

The Supreme Court may order, on terms, that the costs to be incurred by any party of and incidental to his or her attendance on the account, inquiry or other matter under the judgment are to be paid out of the estate or property to which the proceedings relate.

rules 46.10–46.16: Ins 2006 (391), Sch 1 [12].

46.16 Settlement of instrument (cf SCR Part 49, rule 7)

If the judgment directs the settlement of an instrument, the Supreme Court may give directions for the preparation and service of a draft instrument and of objections to the draft.

rules 46.10–46.16: Ins 2006 (391), Sch 1 [12].

46.17 Interest on debts (cf SCR Part 49, rule 8)

(1)  This rule applies to the taking of an account of the debts of a deceased person pursuant to a direction in a judgment.

(2)  If any of the debts carries interest at any rate, interest is to be allowed on that debt at that rate.

(3)  In the case of a debt to which subrule (2) does not apply, interest is to be allowed on the debt at the relevant rate of interest prescribed by rule 36.7 (1) for the purposes of section 101 of the Civil Procedure Act 2005, or such lesser rate as the court may determine, from the date when the judgment takes effect on so much of the debt as is from time to time unpaid.

(4)  Subrules (2) and (3) do not apply if the estate is insolvent or if the Supreme Court otherwise orders.

(5)  If a creditor establishes his or her debt and the debt does not carry interest, interest is to be allowed on such amount as is, for the time being, outstanding under the debt at the relevant rate of interest prescribed by rule 36.7 (1) for the purposes of section 101 of the Civil Procedure Act 2005, or such lesser rate as the court may determine, out of any assets which may remain after satisfying:

(a)  the costs of the proceedings, and

(b)  the debts which have been established, and

(c)  the interest on such of those debts as by law carry interest.

rule 46.17: Ins 2006 (391), Sch 1 [12]. Am 2010 (172), Sch 1 [7]–[9].

46.18 Interest on legacies (cf SCR Part 49, rule 9)

(1)  If an account of legacies is directed by any judgment, interest is, subject to section 84A of the Probate and Administration Act 1898, to be allowed at the rate prescribed for the purposes of subsection (1) of that section from a date of one year after the testator’s death.

(2)  Subrule (1) has effect subject to any directions in the will and unless the Supreme Court otherwise orders.

rule 46.18: Ins 2006 (391), Sch 1 [12]. Am 2008 (63), Sch 1 [2].

Division 3 Equity Division of the Supreme Court: administration accounts and inquiries etc

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

46.19 Application (cf SCR Part 49, rule 10)

(1)  This Division applies to proceedings for the administration of the estate of a deceased person in respect of which the Supreme Court by judgment directs:

(a)  the taking of any account of debts or other liabilities of the estate of the deceased, or

(b)  the making of any inquiry for persons entitled to any interest in the estate on intestacy or otherwise.

(2)  This Division applies to proceedings for the execution of a trust in respect of which the Supreme Court by judgment directs:

(a)  the taking of any account of debts or other liabilities of the trust, or

(b)  the making of any inquiry for persons entitled to any interest in the trust property.

(3)  This Division applies, with the necessary modifications, to any other proceedings in respect of which the Supreme Court by judgment directs:

(a)  the taking of any account of debts or other liabilities of the trust, or

(b)  the making of any inquiry.

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

46.20 Advertisements (cf SCR Part 49, rule 11)

(1)  On the hearing of the motion to proceed or subsequently, the Supreme Court may direct the issue of advertisements for creditors and other claimants.

(2)  For the purposes of determining what direction, if any, to make under subrule (1), the Supreme Court may have regard to any advertisement previously issued.

(3)  If the Supreme Court directs the issue of advertisements for creditors or other claimants, the Court may specify the time within which, and the person on whom, a claimant must serve particulars of his or her claim.

(4)  An advertisement for creditors or other claimants must state the time and name of the person specified under subrule (3) and an address for service of that person and must contain such other matters as the Supreme Court may direct.

(5)  An advertisement for creditors or other claimants must be prepared by the party prosecuting the judgment and signed by the registrar.

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

46.21 Particulars of claim (cf SCR Part 49, rule 12)

(1)  Subject to such provisions as may appear in the advertisement, particulars of a claim served in response to an advertisement must specify the nature and extent of, and full particulars of, the claim, and must state the name and an address for service of the claimant.

(2)  A claimant who does not serve particulars of claim, in accordance with the advertisement and in accordance with subrule (1), on the person and within the time stated in the advertisement is not entitled to prove his or her claim except with the leave of the Supreme Court.

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

46.22 Notice of judgment (cf SCR Part 49, rule 13)

(1)  If a claimant serves particulars of his or her claim in response to an advertisement under a judgment, the person on whom it is served must, within 7 days after service of the particulars of claim, serve notice of the judgment on the claimant.

(2)  On service of notice of a judgment under subrule (1), the provisions of rule 46.12 (1), (4) and (5) apply as if the notice had been served under that rule.

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

46.23 Examination of claims (cf SCR Part 49, rule 14)

The Supreme Court:

(a)  may appoint a person to examine and list claims for the purposes of an account or inquiry under a judgment, and

(b)  may fix a date for adjudication on the claims.

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

46.24 Account: list of claims (cf SCR Part 49, rule 15)

(1)  In the case of an account of debts or other liabilities, the person appointed under rule 46.23 (a):

(a)  must examine the claim of each claimant and consider whether it ought to be allowed, and

(b)  at least 7 days before the date for adjudication on the claims, must file lists of:

(i)  claims served in response to any advertisement, and

(ii)  other claims received by any of the personal representatives or trustees concerned, and

(iii)  debts and liabilities for which claims have not been received but which are or may still be due and which have come to the knowledge of any of the personal representatives or trustees concerned.

(2)  A list filed under subrule (1) must specify, in relation to each alleged debt or liability included in the list, whether, in the belief of the party making the list, the debt or liability ought to be allowed, and the reasons for the belief.

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

46.25 Inquiry: list of claims (cf SCR Part 49, rule 16)

(1)  In the case of an inquiry for persons entitled to any interest in the estate of a deceased person on intestacy or otherwise, or entitled to any interest in trust property, the person appointed under rule 46.23 (a):

(a)  must examine the claim of each claimant and consider whether it is valid, and

(b)  at least 7 days before the date for adjudication on the claims, must file lists of:

(i)  claims served in response to any advertisement, and

(ii)  other claims received by, or which have come to the knowledge of, any of the personal representatives or trustees concerned.

(2)  A list filed under subrule (1) must specify, in relation to each claim included in the list, whether, in the belief of the party making the list, the claim is valid, and the reasons for the belief.

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

46.26 Verification of list (cf SCR Part 49, rule 17)

The Supreme Court may direct a person appointed under rule 46.23 (a), and any of the personal representatives or trustees concerned, to verify by affidavit a list filed under rule 46.24 or rule 46.25.

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

46.27 Adjudication (cf SCR Part 49, rule 18)

(1)  On the adjudication on the claims, the Supreme Court:

(a)  may allow any claim, with or without proof, or

(b)  may direct that any claim be investigated in such manner as the Court thinks fit, or

(c)  may require any claimant to attend and prove his or her claim or to furnish further particulars or evidence of his or her claim or to produce any security relating to his or her claim, or

(d)  may disallow any claim.

(2)  A claimant need not make an affidavit or attend in support of his or her claim unless the Supreme Court so directs under subrule (1) (c).

(3)  If the Supreme Court so directs, a party must file a list of the claims allowed.

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

46.28 Notice to prove claim (cf SCR Part 49, rule 19)

(1)  This rule applies if the Supreme Court requires a claimant to attend and prove his or her claim pursuant to rule 46.27 (1) (c).

(2)  The Supreme Court must appoint a party to give notice in accordance with subrule (3) and must determine the times and documents to be specified in the notice.

(3)  The party so appointed must serve on the claimant a notice requiring him or her:

(a)  to serve on the party serving the notice an affidavit in support of his or her claim within such time, not less than 7 days after the date of service of the notice, as may be specified in the notice, and

(b)  to attend before the Supreme Court for adjudication on the claim at such time as may be specified in the notice, and

(c)  to produce to the Supreme Court, at such time as may be specified in the notice, such documents as may be specified or described.

(4)  If a claimant does not comply with a notice served on him or her under subrule (3), the Supreme Court may disallow his or her claim.

pt 46, div 3 (rules 46.19–46.28): Ins 2006 (391), Sch 1 [12].

Part 47 Matters arising under the Commercial Arbitration Act 1984

Division 1 General

pt 47, div 1: Ins 2006 (391), Sch 1 [12].

47.1 Definitions (cf SCR Part 72A, rule 1)

In this Part:

arbitrator includes an umpire.

award includes an interim award.

the court has the same meaning as the Court has in the Commercial Arbitration Act 1984.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.2 Preliminary point of law (cf SCR Part 72A, rule 3)

An application to the Supreme Court for a determination under section 39 (1) of the Commercial Arbitration Act 1984 must be made within 14 days after the date on which the consent or all the consents in writing was or were given to the party who wishes to apply to the Court under that subsection.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.3 Interlocutory orders (cf SCR Part 72A, rule 4)

In proceedings on an application for an order under section 47 of the Commercial Arbitration Act 1984, the court may refuse to make the order if the court considers that the arbitrator has power to make the order.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.4 Time for applications and appeals (cf SCR Part 72A, rule 5)

(1)  An appeal to the Supreme Court under section 38 (4) (a) of the Commercial Arbitration Act 1984 must be instituted within 28 days after the material date.

(2)  An application to the Supreme Court for an order under section 38 (4) (b) of the Commercial Arbitration Act 1984 must be made within 28 days after the material date.

(3)  An application to the court for an order under section 42 or 43 of the Commercial Arbitration Act 1984 must be made within 28 days after the material date.

(4)  In this rule material date, in relation to an application or appeal, means:

(a)  in the case of an award that includes a statement of the reasons for making the award, the date on which the arbitrator gives notice of the award to the applicant or appellant, and

(b)  in the case of an award that does not include such a statement, the date on which the arbitrator gives notice of the reasons for making the award to the applicant or appellant.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.5 Application for leave under section 38 (4) (b) to appeal (cf SCR Part 14, rule 4, Part 72A, rule 6)

(1)  The plaintiff must file with or subscribe to the originating process on an application for leave under section 38 (4) (b) of the Commercial Arbitration Act 1984 a statement:

(a)  describing the nature of the case with particularity sufficient for an understanding of the matters referred to in paragraphs (b), (c), (d) and (e), and

(b)  identifying the question of law, and

(c)  of the circumstances and manner in which the determination of the question of law could substantially affect the rights of one or more parties to the arbitration agreement, and

(d)  if applicable, of the manifest error of law on the face of the award, and

(e)  if applicable, of the error of law made by the arbitrator and of why the determination of the question may add, or be likely to add, substantially to the certainty of commercial law.

(2)  This rule does not apply to proceedings that are entered in the Commercial List in the Supreme Court.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.6 Subpoena (cf SCR Part 72A, rule 7)

(1)  Part 33 applies to the issue of a subpoena under section 17 (1) of the Commercial Arbitration Act 1984 in the same way as it applies to the issue of a subpoena in proceedings in the court.

(2)  A subpoena for production before an arbitrator may, with the leave of the court or the arbitrator, require production on any day.

(3)  Unless the court otherwise orders, a subpoena requiring production of any document or thing before an arbitrator must permit the person named, instead of attending and producing it before the arbitrator, to produce the document or thing:

(a)  to a person, and at a place, nominated in writing by the arbitrator and stated in the subpoena, and

(b)  by hand or by post,

so that the person nominated receives it not later than 2 days before the first date on which production before the arbitrator is required.

(4)  If a document or thing is produced in accordance with subrule (3) the person nominated:

(a)  if required to do so, must give a receipt to the person producing the document or thing, and

(b)  must produce the document or thing as the nature of the case requires or as the arbitrator may direct.

(5)  Subrule (3) does not apply to so much of a subpoena as requires a person to attend to give evidence.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.7 Order for examination of witness (cf SCR Part 72A, rule 8)

(1)  Rule 24.3 applies to an arbitration under the Commercial Arbitration Act 1984 in the same way as it applies to proceedings in the court.

(2)  If any order is made pursuant to rule 24.3 as so applied, the other provisions of Part 24 apply as if:

(a)  a reference in that Part to proceedings included a reference to the arbitration proceedings, and

(b)  the provisions of rule 24.14 (4), (5) and (6) were omitted.

(3)  Unless the court otherwise orders, the examiner must send the transcript of evidence, any document that constitutes an audio-visual recording and the exhibits to the registrar.

(4)  On receiving the transcript of evidence, the registrar must file it in the proceedings on the examination.

(5)  The court may make orders for the transmission to the arbitrator of the transcript of evidence, document, any exhibit or copy of any exhibit and any such transcript, document, exhibit or copy is taken to have been taken or received (as the case requires) in the course of the arbitration proceedings.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.8 Leave to enforce award (cf SCR Part 72A, rule 9)

(1)  The originating process for leave under section 33 of the Commercial Arbitration Act 1984 must join the party who seeks enforcement of the award as plaintiff and the party against whom the enforcement is sought as defendant.

(2)  Section 9 of the International Arbitration Act 1974 of the Commonwealth applies to proceedings in which a person seeks leave under section 33 of the Commercial Arbitration Act 1984 to enforce an award in the same way as it applies to proceedings in which a person seeks the enforcement of a foreign award by virtue of the Commonwealth Act.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.9 Leave to appeal (cf SCR Part 72A, rule 10)

An appeal does not lie from a direction or decision in proceedings in the court under the Commercial Arbitration Act 1984 except by leave of the court to which the appeal is to be made.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

Division 2 Offer of compromise

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.10 Application of Division (cf SCR Part 72A, rule 11)

This Division applies except so far as is otherwise agreed in writing by the parties to the arbitration agreement.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.11 Interim awards (cf SCR Part 72A, rule 12)

(1)  Unless the parties otherwise request, the arbitrator in any arbitration proceedings:

(a)  must make an interim award dealing with all questions of liability and the relief to be granted, and

(b)  must, before making any provision in an award with respect to the costs of the arbitration, give the parties an opportunity to be heard on the question of the costs of the arbitration.

(2)  Subrule (1) does not apply if an offer has been accepted in accordance with this Division.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.12 Mode of making offer (cf SCR Part 72A, rule 13)

(1)  An offer of compromise is made to a party under this Division by serving a notice of the offer on the party.

(2)  A notice of offer must be in writing and bear a statement to the effect that the offer is made in accordance with this Division.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.13 Application (cf SCR Part 72A, rule 14)

Any party may make to any other party an offer to compromise any claim to which the arbitration agreement applies on the terms specified in the notice of offer.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.14 Time for making or accepting offer (cf SCR Part 72A, rule 15)

(1)  An offer may be made at any time before the time prescribed by subrule (8) in respect of the claim to which it relates.

(2)  A party may make more than one offer.

(3)  An offer may be expressed to be limited as to the time it is open to be accepted but the time expressed must not be less than 28 days after it is made.

(4)  An offeree must, within 3 days after service, serve a written acknowledgment of receipt on the offeror.

(5)  An offeree may accept the offer by serving notice of acceptance in writing on the offeror before:

(a)  the expiration of the time specified in accordance with subrule (3) or, if no time is specified, the expiration of 28 days after the offer is made, or

(b)  the time prescribed by subrule (8) in respect of the claim to which the offer relates,

whichever is sooner.

(6)  An offer may not be withdrawn during the time it is open to be accepted.

(7)  An offer is open to be accepted within the period referred to in subrule (5) even if during that period the party to whom the offer (the first offer) is made makes an offer (the second offer) to the party who made the first offer, whether or not the second offer is made in accordance with this Division.

(8)  The time prescribed for the purposes of subrules (1) and (5) is the time when the arbitrator:

(a)  has made decisions on all questions of liability and the relief to be granted in respect of the claim to which the offer relates, and

(b)  has communicated the decisions to one or more of the parties.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.15 Time for payment (cf SCR Part 72A, rule 16)

An offer providing for the payment of a sum of money, or for the doing of any other act, is, unless the notice of offer otherwise provides, taken to provide for the payment of that sum or the doing of that act within 28 days after acceptance of the offer.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.16 Withdrawal of acceptance (cf SCR Part 72A, rule 17)

(1)  A party who accepts an offer may, by serving a notice of withdrawal on the offeror, withdraw the acceptance if:

(a)  the offer provides for payment of a sum of money or the doing of any other act, and

(b)  the sum is not paid to the offeree, or the act is not done, within 28 days after acceptance of the offer or within such other time as the offer provides.

(2)  On withdrawal of an acceptance all steps in the arbitration taken in consequence of the acceptance have such effect only as the arbitrator may direct.

(3)  On withdrawal of an acceptance the arbitrator:

(a)  may give directions under subrule (2), and

(b)  may give directions for restoring the parties as nearly as may be to their positions at the time of the acceptance, and

(c)  may give directions for the further conduct of the arbitration.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.17 Offer without prejudice (cf SCR Part 72A, rule 18)

An offer made in accordance with this Division is taken to have been made without prejudice, unless the notice of offer otherwise provides.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.18 Disclosure of offer to arbitrator (cf SCR Part 72A, rule 19)

(1)  No statement of the fact that an offer has been made may be contained in any document delivered to the arbitrator before the time prescribed by subrule (4).

(2)  If an offer has not been accepted, no communication with respect to the offer may be made to the arbitrator before the time prescribed by subrule (4).

(3)  Subrules (1) and (2) do not apply if a notice of offer provides that the offer is not made without prejudice.

(4)  The time prescribed for the purposes of subrules (1) and (2) is the time when the arbitrator:

(a)  has made decisions on all questions of liability and the relief to be granted in respect of the claim to which the offer relates, and

(b)  has communicated the decisions to one or more of the parties.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.19 Failure to comply with accepted offer (cf SCR Part 72A, rule 20)

If a party to an accepted offer fails to comply with the terms of the offer, then, unless the court otherwise orders, the other party is entitled, as he or she may elect, to:

(a)  such judgment or order as is appropriate to give effect to the terms of the accepted offer, or

(b)  if the party in default is the claimant, an order that the arbitration be stayed, or

(c)  if the party in default is opposing the claim, an order declaring that:

(i)  the compromise constituted by the acceptance of the offer is of no effect, and

(ii)  the claimant is at liberty to proceed with the arbitration.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

47.20 Costs where offer not accepted (cf SCR Part 72A, rule 21)

In any exercise of discretion as to costs, the arbitrator must consider whether the offeror was at all material times willing and able to carry out the offeror’s part of what was proposed in the offer.

pt 47, div 2 (rules 47.1–47.20): Ins 2006 (391), Sch 1 [12].

Part 48 Matters arising under Commonwealth intellectual property legislation

Division 1 Intellectual property cases generally

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.1 Application (cf SCR Part 81, rule 1)

This Part applies to intellectual property cases in the Supreme Court.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.2 Definitions (cf SCR Part 81, rule 2)

(1)  In this Part:

Commissioner means:

(a)  in relation to proceedings under the Designs Act 2003 of the Commonwealth, the Registrar within the meaning of that Act, or

(b)  in relation to proceedings under the Patents Act 1990 of the Commonwealth, the Commissioner within the meaning of that Act, or

(c)  in relation to proceedings under the Trade Marks Act 1995 of the Commonwealth, the Registrar within the meaning of that Act.

intellectual property Act means the Circuit Layouts Act 1989 of the Commonwealth, the Copyright Act 1968 of the Commonwealth, the Designs Act 2003 of the Commonwealth, the Patents Act 1990 of the Commonwealth or the Trade Marks Act 1995 of the Commonwealth.

intellectual property case means:

(a)  any proceedings for infringement of EL rights subsisting under the Circuit Layouts Act 1989 of the Commonwealth, or

(b)  any proceedings for infringement of copyright under the Copyright Act 1968 of the Commonwealth, or

(c)  any proceedings for infringement of a monopoly in a design registered under the Designs Act 2003 of the Commonwealth, or

(d)  any proceedings for infringement of a patent granted under the Patents Act 1990 of the Commonwealth, or

(e)  any proceedings for infringement of a trade mark registered under the Trade Marks Act 1995 of the Commonwealth, or

(f)  any other proceedings under any of those Acts,

whether or not the cause of action in those proceedings is joined with any other cause of action.

(2)  These rules apply to proceedings under the Patents Act 1990 of the Commonwealth as if a reference in that Act to an applicant were a reference to a plaintiff and as if a reference in that Act to a respondent were a reference to a defendant.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.3 Expressions in this Part (cf SCR Part 81, rule 3)

(1)  Unless the contrary intention appears, expressions used in this Part have the same meanings, in relation to proceedings taken under an intellectual property Act, as they have in that Act.

(2)  A reference in any of the intellectual property Acts to a counter-claim (sometimes spelled counterclaim) is taken to be a reference to a statement of cross-claim or cross-summons, as the case requires.

Note—

See rule 9.1 (3) as to the application of these rules to cross-claims and cross-summonses.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.4 Mode of commencement (cf SCR Part 81, rule 5)

The requirements of these rules for a statement of claim or summons do not apply to an application for an order under an intellectual property Act if the application is required to be and is made under that Act in a petition, counter-claim or other document.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.5 Applications: service and date of hearing (cf SCR Part 81, rule 9)

(1)  Unless the Supreme Court otherwise orders, the summons by which an application under an intellectual property Act is made to the Court:

(a)  must be served on the Commissioner, and

(b)  must not be heard before 14 days after service on the parties and the Commissioner.

(2)  Unless the Supreme Court otherwise orders, where:

(a)  rule 48.11, 48.12, 48.13 or 48.14 applies to the proceedings, and

(b)  the proceedings are commenced by summons,

the proceedings must not be heard before 14 days after the requirements as to service contained in the applicable rule have been complied with.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.6 Mode of giving notice to Commissioner (cf SCR Part 81, rule 10)

Notice of any application to the Supreme Court under an intellectual property Act is to be given to the Commissioner by serving on the Commissioner the originating process by which proceedings on the application are commenced.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.7 Appearance of Commissioner (cf SCR Part 81, rule 11)

(1)  In an intellectual property case, the Commissioner:

(a)  may appear and be heard, and

(b)  may file a statement in writing signed by the Commissioner giving particulars of:

(i)  any proceedings before the Commissioner in relation to the matter in issue, and

(ii)  the grounds of a decision, determination or direction given or made by the Commissioner in respect of those proceedings, and

(iii)  the practice of the Commissioner’s Office in like cases,

and, as soon as practicable, serve it on all active parties.

(2)  The Supreme Court may make such use of a statement filed under subrule (1) (b) as the Court thinks just.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.8 Commissioner: notice of objection (cf SCR Part 81, rule 12)

Unless the Supreme Court otherwise orders, if the Commissioner elects or is required by the Court to appear in proceedings before the Court, the Commissioner must give reasonable notice to all active parties:

(a)  of the grounds of any objection the Commissioner proposes to take, and

(b)  of any evidence the Commissioner proposes to place before the Court.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.9 Statement of facts (cf SCR Part 81, rule 16)

(1)  The Supreme Court may direct each party to lodge a statement of the facts alleged to establish infringement, validity and absence of infringement and validity.

(2)  Subrule (1) does not affect any requirement of an intellectual property Act or of these rules for the giving or delivery of particulars.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

Division 2 The Patents Act 1990 of the Commonwealth

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.10 Amendment of patent etc: section 105 (cf SCR Part 81, rule 17)

(1)  An application for an order under section 105 (1) of the Patents Act 1990 of the Commonwealth may not be made until after the applicant has given the Commissioner a notice of intention to apply, accompanied by an advertisement that states:

(a)  the identity of the proceedings in which the application will be made, and

(b)  the particulars of the amendment sought, and

(c)  the applicant’s address for service, and

(d)  that a person intending to oppose the application who is not a party to the proceedings must, not later than 28 days after publication of the advertisement, give written notice of that intention to the Commissioner and to the active parties.

(2)  Unless the Supreme Court otherwise orders, the Commissioner must publish the advertisement once in the Australian Official Journal of Patents referred to in section 222 of the Patents Act 1990 of the Commonwealth.

Note—

The Australian Official Journal of Patents is published by IP Australia (an agency of the Commonwealth Government).

(3)  A person who gives notice under subrule (1) (d) is entitled to be heard in opposition to the application, subject to any direction of the Supreme Court as to costs.

(4)  The application may be instituted by filing a notice of motion in the relevant proceedings no later than 50 days after the date of publication of the advertisement.

(5)  The notice of motion, together with a copy of the patent, patent request or complete specification, as appropriate, showing in ink of contrasting colour the amendment sought, must be served on the Commissioner, each active party and each person who has given notice under subrule (1) (d).

(6)  On the hearing of the motion, the Supreme Court may give such directions as it thinks fit for the conduct of proceedings on the motion, including any one or more of the following:

(a)  a direction requiring the applicant to give, to each party or other person opposing the application, a statement of the grounds relied on for the amendment,

(b)  a direction requiring a party or other person opposing the application to give to the applicant a statement of the grounds relied on in opposition to the amendment,

(c)  a direction determining that the motion will be heard with the relevant proceedings or separately and, if separately, fixing the date for hearing the motion,

(d)  a direction determining the manner in which evidence will be adduced and, in the case of evidence by affidavit, fixing the times within which the affidavits must be served.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.11 Infringement proceedings: section 120 (1) (cf SCR Part 81, rule 18)

(1)  The originating process in proceedings under section 120 (1) of the Patents Act 1990 of the Commonwealth must be served:

(a)  on the defendant in the proceedings, and

(b)  if the plaintiff is an exclusive licensee, on the patentee, and

(c)  on the Commissioner.

(2)  If the application relates to an innovation patent, the originating process or its supporting affidavit must state the date when the innovation patent was granted under the Patents Act 1990 of the Commonwealth.

(3)  Particulars of infringements complained of:

(a)  must give at least one instance of each type of infringement alleged, and

(b)  in proceedings for infringement of a standard patent, must specify which of the claims of the complete specification of that patent are alleged to be infringed.

(4)  A defendant relying on a defence under section 144 (4) of the Patents Act 1990 of the Commonwealth must give particulars of:

(a)  the date of, and the parties to, a contract on which the defendant intends to rely for the defence, and

(b)  the provision of the contract that the defendant asserts is void.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.12 Non-infringement declarations: section 125 (1) (cf SCR Part 81, rule 19)

The originating process in proceedings under section 125 (1) of the Patents Act 1990 of the Commonwealth must be served:

(a)  on the nominated person, or the patentee, as the case requires, and

(b)  on the Commissioner.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.13 Relief from unjustified threat: section 128 (1) (cf SCR Part 81, rule 20)

The originating process in proceedings under section 128 (1) of the Patents Act 1990 of the Commonwealth must be served:

(a)  on the person making the threat, and

(b)  on the Commissioner.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.14 Compulsory licences, revocation etc (cf SCR Part 81, rule 21)

(1)  The originating process in proceedings under section 133 (1), 134 (1) or 138 (1) of the Patents Act 1990 of the Commonwealth must be served:

(a)  on the patentee, and

(b)  as a further defendant—on any person who claims an interest in the patent as exclusive licensee, and

(c)  on the Commissioner.

(2)  A plaintiff in proceedings to which subrule (1) applies must comply with Chapter 12 of the Patents Regulations 1991 of the Commonwealth.

(3)  If an application under section 133 (1) or 138 (1) of the Patents Act 1990 of the Commonwealth relates to an innovation patent, the originating process or its supporting affidavit must state the date when the innovation patent was granted under that Act.

(4)  An application for leave under section 137 (4) of the Patents Act 1990 of the Commonwealth may be made by motion in the proceedings pending in the Supreme Court.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.15 Particulars of invalidity (cf SCR Part 81, rule 22)

(1)  A party who disputes the validity of a patent must deliver, with the pleading or other document in which the party disputes the validity of registration, particulars of the grounds of invalidity on which the party relies.

(2)  If one of the grounds referred to in subrule (1) is that the invention is not a patentable invention because of information about the invention in a document or through the doing of an act, the particulars must specify:

(a)  in the case of a document, the time when, and the place where, the document is alleged to have become publicly available, and

(b)  in the case of an act:

(i)  the name of the person alleged to have done the act, and

(ii)  the period in which, and the place where, the act is alleged to have been done publicly, and

(iii)  a description that is sufficient to identify the act, and

(iv)  if the act relates to apparatus or machinery, whether the apparatus or machinery exists and, if so, where it can be inspected.

(3)  If:

(a)  one of the grounds referred to in subrule (1) is that the invention, so far as claimed in any claim of the complete specification of the patent, is not useful, and

(b)  it is intended, in connection with that ground, to rely on the fact that an example of the invention which is the subject of any such claim cannot be made to work, either at all or as described in the specification,

the particulars must identify each such claim and state that fact and must include particulars of each such example, specifying the respect in which it is alleged that it does not work as described.

(4)  Except by leave of the Supreme Court, evidence is not admissible in proof of a ground of invalidity of which particulars have not been given.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.16 Experiments (cf SCR Part 81, rule 23)

(1)  The Supreme Court may give directions:

(a)  for the service on the other parties, by any party desiring to submit experimental proof, of particulars of the experiments proposed and of the facts which the party claims to be able to establish by the experiments, and

(b)  for the conduct of, and the persons who may attend, the experiments.

(2)  In any proceedings for infringement or the revocation of a patent, the Supreme Court may direct that evidence with respect to any experiment made is not admissible unless the experiment has been made substantially in accordance with directions given under subrule (1).

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

Division 3 The Trade Marks Act 1995 of the Commonwealth

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.17 Particulars of infringements (cf SCR Part 81, rule 37)

Particulars of the infringements of a registered trade mark:

(a)  must specify the manner in which the trade mark is alleged to be infringed, and

(b)  must give at least one instance of each type of infringement alleged.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.18 Counter-claim to proceedings for infringement (cf SCR Part 81, rule 38)

(1)  The defendant in any proceedings for infringement of a registered trade mark may apply by way of counter-claim for an order:

(a)  that the Register be rectified, or

(b)  directing the Registrar to remove the trade mark from the Register.

(2)  There must be delivered with the counter-claim particulars of the grounds on which the order is sought.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.19 Judgment in absence of defendant (cf SCR Part 81, rule 38B)

(1)  Unless the Supreme Court otherwise orders, a judgment based on infringement of a trade mark may not be given or entered against a defendant in his or her absence unless the plaintiff files an affidavit that the proceedings are not in contravention of section 128 of the Trade Marks Act 1995 of the Commonwealth.

(2)  Unless the Supreme Court otherwise orders, a judgment based on section 129 of the Trade Marks Act 1995 of the Commonwealth may not be given or entered against a defendant in his or her absence unless the plaintiff files an affidavit that the proceedings are not in contravention of section 129 (5) of that Act.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.20 Evidences for purposes of regulation 8.2 of the Trade Marks Regulations 1995 (cf SCR Part 81, rule 38C)

Unless the Supreme Court otherwise orders, the evidence in support of an application to which regulation 8.2 of the Trade Marks Regulations 1995 of the Commonwealth (which relates to certain applications for rectification of the Register) applies must include evidence sufficient to enable the Court to comply with the regulation.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

Division 4 The Designs Act 2003 of the Commonwealth

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.21 Particulars of infringements (cf SCR Part 81, rule 39)

Particulars of infringements of the monopoly in a registered design:

(a)  must specify the manner in which the design is alleged to be infringed, and

(b)  must give at least one instance of each type of infringement alleged.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.22 Particulars of invalidity (cf SCR Part 81, rule 40)

(1)  A person who:

(a)  applies under section 93 of the Designs Act 2003 of the Commonwealth for the revocation of the registration of a design, or

(b)  applies under section 120 of that Act for the rectification of the Register, or

(c)  disputes, in any proceedings, the validity of a registered design,

must, in the pleading or other document that disputes the validity of the registered design, give particulars of the grounds of invalidity on which the person relies.

(2)  If one of those grounds is previous publication or user, the particulars must state the time and place of the previous publication or user alleged, and, in the case of previous user, the particulars:

(a)  must specify the name of the person who is alleged to have made the previous user, and

(b)  must specify the period during which the previous user is alleged to have continued, and

(c)  must contain a description sufficient to identify the previous user.

(3)  Except by leave of the Supreme Court, evidence is not admissible in proof of a ground of invalidity of which particulars have not been given.

(4)  The Supreme Court may extend the time for delivering particulars under this rule and may allow particulars so delivered to be amended.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.23 Application for compulsory licence: section 90 (cf Federal Court Rules , Order 58, rule 23)

An application for the grant of a compulsory licence under section 90 of the Designs Act 2003 of the Commonwealth must state the facts intended to be relied on to show that:

(a)  products embodying the design have not been made in Australia, to the extent that is reasonable in the circumstances of the case, and

(b)  the registered owner of the design has given no satisfactory reason for failing to exercise the exclusive rights in the design, and

(c)  the applicant has tried for a reasonable period, but without success, to obtain from the registered owner of the design an authorisation to do, on reasonable terms and conditions, any of the things mentioned in section 10 (1) (a)–(e) of that Act in relation to the design.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

Division 5 The Circuit Layouts Act 1989 of the Commonwealth

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

48.24 Applications concerning infringement of EL rights

In proceedings for infringement of EL rights (within the meaning of the Circuit Layouts Act 1989 of the Commonwealth), particulars of the infringement must specify the manner in which it is alleged that the EL rights have been infringed and must give at least one instance of each type of infringement alleged.

pt 48, divs 1–5 (rules 48.1–48.24): Ins 2006 (391), Sch 1 [12].

Part 49 Reference and removal of proceedings, and appeals and reviews, within the court

pt 49, hdg (previously Part 45, heading): Renumbered 2006 (391), Sch 1 [11]. Subst 2007 (580), Sch 1 [8].

pt 49 (previously Part 45): Renumbered 2006 (391), Sch 1 [11].

Division 1 Matters before Supreme Court constituted by associate Judge

pt 49, div 1 (previously Part 45, Div 1): Subst 2005 (395), Sch 1 [52]. Renumbered 2006 (391), Sch 1 [11].

49.1 Construction of certain references

In this Division:

(a)  a reference to the Supreme Court is a reference to the Supreme Court constituted by a Judge of the Supreme Court, and

(b)  a reference to an associate Judge of the Supreme Court is a reference to the Supreme Court constituted by that associate Judge.

Note—

See section 36 of the Land and Environment Court Act 1979, which provides that proceedings that are before a Commissioner of the Land and Environment Court under that section, or under section 34 of that Act, may be referred or removed for hearing by a Judge of the Land and Environment Court in the same way as proceedings before an associate Judge of the Supreme Court may be referred or removed for hearing by a Judge of the Supreme Court.

rule 49.1 (previously rule 45.1): Subst 2005 (395), Sch 1 [52]. Renumbered 2006 (391), Sch 1 [11]. Am 2007 (580), Sch 1 [9].

49.2 Reference and removal of proceedings (cf SCR Part 60, rules 6 and 7)

(1)  An associate Judge of the Supreme Court may refer any proceedings before the associate Judge to the Supreme Court.

(2)  Before the conclusion of any proceedings before an associate Judge of the Supreme Court, the Supreme Court may order that the proceedings be removed into the Supreme Court.

rules 49.2–49.4 (previously rules 45.2–45.4): Subst 2005 (395), Sch 1 [52]. Renumbered 2006 (391), Sch 1 [11].

49.3 Disposal of proceedings referred or removed (cf SCR Part 60, rule 8)

On the reference or removal to the Supreme Court of any proceedings before an associate Judge of the Supreme Court, the Supreme Court:

(a)  may hear and determine any matter in the proceedings in respect of which the proceedings were before the associate Judge, or

(b)  may determine any question arising in the proceedings and remit the proceedings to the associate Judge with such directions as it thinks fit.

rules 49.2–49.4 (previously rules 45.2–45.4): Subst 2005 (395), Sch 1 [52]. Renumbered 2006 (391), Sch 1 [11].

49.4 Right of appeal (cf SCR Part 60, rule 10)

An appeal lies to the Supreme Court from any decision of an associate Judge of the Supreme Court, except in any case where an appeal lies to the Court of Appeal.

rules 49.2–49.4 (previously rules 45.2–45.4): Subst 2005 (395), Sch 1 [52]. Renumbered 2006 (391), Sch 1 [11].

Division 2 Matters before a judicial registrar of the District Court

pt 49, div 2 (previously Part 45, Div 2): Renumbered 2006 (391), Sch 1 [11].

49.5 Reference of matter to the District Court (DCR Part 43A, rule 2)

The judicial registrar of the District Court may refer any proceedings before the judicial registrar to the District Court constituted by a Judge.

rules 49.5, 49.6 (previously rules 45.5, 45.6): Renumbered 2006 (391), Sch 1 [11].

49.6 Court may order removal of proceedings from judicial registrar (DCR Part 43A, rule 3)

The District Court constituted by a Judge may, before the conclusion of any proceedings before the judicial registrar (other than proceedings for an interlocutory order), order that the proceedings be removed into the Court as so constituted.

rules 49.5, 49.6 (previously rules 45.5, 45.6): Renumbered 2006 (391), Sch 1 [11].

49.7 Court may dispose of matter referred by or removed from judicial registrar (DCR Part 43A, rule 4)

If proceedings are referred to the District Court constituted by a Judge under rule 49.5 or removed into the Court under rule 49.6, the Court:

(a)  may hear and determine any matter in the proceedings that was before the judicial registrar, or

(b)  may determine any question arising in the proceedings and remit the proceedings to the judicial registrar with such directions as the Court thinks fit.

rule 49.7 (previously rule 45.7): Renumbered 2006 (391), Sch 1 [11]. Am 2006 (391), Sch 1 [11].

Division 3 Procedures for appeals to court from decisions of associate Judge

pt 49, div 3, hdg (previously Part 45, Div 3, heading): Am 2005 (625), Sch 1 [17]. Renumbered 2006 (391), Sch 1 [11]. Am 2006 (391), Sch 1 [13].

49.7A Construction of certain references

In this Division:

(a)  a reference to the Supreme Court is a reference to the Supreme Court constituted by a Judge of the Supreme Court, and

(b)  a reference to an associate Judge of the Supreme Court is a reference to the Supreme Court constituted by that associate Judge.

rule 49.7A (previously rule 45.7A): Ins 2005 (395), Sch 1 [53]. Renumbered 2006 (391), Sch 1 [11].

49.8 Institution of appeal (cf SCR Part 60, rule 11)

(1)  An appeal from a decision of an associate Judge of the Supreme Court under rule 49.4 is to be instituted by filing a notice of motion.

(2)  The appeal must be instituted within 28 days after the material date.

(3)  The associate Judge may extend the time allowed under subrule (2) within 28 days after the material date, or on a notice of motion filed within 28 days after the material date, and not otherwise.

(4)  The Supreme Court may extend the time allowed under subrule (2) at any time.

(5)  For the purposes of this rule, the material date is:

(a)  in the case of an appeal from a judgment, the date on which the judgment was given, or

(b)  in the case of an appeal from an order, the date of the order, or

(c)  in any other case, the date of the decision under appeal.

rule 49.8 (previously rule 45.8): Subst 2005 (395), Sch 1 [54]. Renumbered 2006 (391), Sch 1 [11]. Am 2006 (391), Sch 1 [11] [14]–[16].

49.9 Contents of notice of motion for appeal (cf SCR Part 60, rule 12)

A notice of motion filed under this Division must state the following:

(a)  whether the appeal is from the whole or part only, and what part, of the decision,

(b)  briefly, but specifically, the grounds relied on in support of the appeal,

(c)  what judgment, order or determination is sought in place of the decision.

rule 49.9 (previously rule 45.9): Renumbered 2006 (391), Sch 1 [11].

49.10 Stay and reinstatement (cf SCR Part 60, rule 14)

(1)  An appeal under this Division:

(a)  does not operate as a stay of execution or stay of proceedings under the decision of the associate Judge of the Supreme Court, and

(b)  does not invalidate any intermediate act or proceedings,

except so far as the Supreme Court (or, subject to any direction of the Supreme Court, the associate Judge) may direct.

(2)  If any step has been taken for the enforcement of a judgment or order and the Supreme Court or District Court varies or sets aside the judgment or order on appeal under this Division, the Supreme Court or District Court may make such orders for reinstatement as the Supreme Court or District Court thinks fit.

rule 49.10 (previously rule 45.10): Subst 2005 (395), Sch 1 [55]. Renumbered 2006 (391), Sch 1 [11]. Am 2006 (391), Sch 1 [17].

49.11 Cross-appeal (cf SCR Part 60, rule 14A)

(1)  Any party to proceedings the subject of an appeal under this Division may institute a cross-appeal by filing a notice of motion in the proceedings.

(2)  The notice of motion must be filed within 28 days after service of the notice of motion instituting an appeal.

(3)  Subject to this rule, the provisions of this Division with respect to a notice of motion instituting an appeal apply to a notice of motion instituting a cross-appeal.

rule 49.11 (previously rule 45.11): Renumbered 2006 (391), Sch 1 [11]. Am 2007 (327), Sch 1 [16] [17].

49.12 Evidence (cf SCR Part 60, rule 15)

(1)  Oral evidence may not be adduced on an appeal under this Division except by leave of the court.

(2)  A party who proposes to adduce further evidence on an appeal:

(a)  if the evidence is to be by affidavit, must serve on each other party a copy of the affidavit, or

(b)  if the evidence is to be adduced orally, must serve on each other party a statement of the general nature of the evidence,

not more than 7 days after the date of institution of the appeal.

rule 49.12 (previously rule 45.12): Renumbered 2006 (391), Sch 1 [11].

49.13 Notice of contention (cf SCR Part 60, rule 15A)

A party to an appeal under this Division who wishes to contend that a decision should be affirmed on grounds other than those relied on by the associate Judge, but does not seek a discharge or variation of any part of the decision:

(a)  must file notice of that contention, stating briefly but specifically the grounds relied on in support of the contention, and

(b)  must serve the notice referred to in paragraph (a) on each other party to the appeal,

within 28 days after being served with the notice of motion instituting the appeal.

rule 49.13 (previously rule 45.13): Am 2005 (625), Sch 1 [18]. Renumbered 2006 (391), Sch 1 [11]. Am 2006 (391), Sch 1 [18].

Division 4 Review of decisions of registrar (other than judicial registrar)

pt 49, div 4 (previously Part 45, Div 4): Renumbered 2006 (391), Sch 1 [11].

49.14 Application of Division

This Division does not apply to in respect of the judicial registrar of the District Court.

rules 49.14–49.17 (previously rules 45.14–45.17): Renumbered 2006 (391), Sch 1 [11].

49.15 Mandatory order to registrar (cf DCR Part 43, rule 11)

(1)  The court, of its own motion or on application by a party, may, by order, direct a registrar or any other officer of the court to do or refrain from doing, in any proceedings, any act relating to the duties of his or her office.

(2)  A party who applies for such an order must give such notice to the officer concerned as is reasonable in the circumstances.

rules 49.14–49.17 (previously rules 45.14–45.17): Renumbered 2006 (391), Sch 1 [11].

49.16 Reference of proceedings (cf DCR Part 43, rule 12)

A registrar, of his or her own motion or on application by a party, may refer any proceedings before the registrar to the court.

rules 49.14–49.17 (previously rules 45.14–45.17): Renumbered 2006 (391), Sch 1 [11].

49.17 Removal of proceedings (cf DCR Part 43, rule 13)

Before the conclusion of any proceedings before a registrar, the court may, on application by a party, order that the proceedings be removed into the court.

rules 49.14–49.17 (previously rules 45.14–45.17): Renumbered 2006 (391), Sch 1 [11].

49.18 Disposal of proceedings referred or removed (cf DCR Part 43, rule 14)

On the reference or removal to the court of any proceedings before a registrar, the court:

(a)  may hear and determine any matter in the proceedings in respect of which the proceedings were before the registrar, or

(b)  may determine any question arising in the proceedings and remit the proceedings to the registrar with such directions as the court thinks fit.

rule 49.18 (previously rule 45.18): Am 2005 (395), Sch 1 [56]. Renumbered 2006 (391), Sch 1 [11].

49.19 Review of registrar’s directions, certificates, orders, decisions and other acts (cf SCR Part 61, rule 3; DCR Part 43, rule 15)

If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.

rule 49.19 (previously rule 45.19): Renumbered 2006 (391), Sch 1 [11]. Subst 2007 (449), Sch 1 [6].

Division 5 Procedures for applications for review of decisions of registrar (other than judicial registrar)

pt 49, div 5 (previously Part 45, Div 5): Renumbered 2006 (391), Sch 1 [11].

49.20 Applications generally (cf SCR Part 60, rule 11)

(1)  An application for review of a decision of a registrar is to be instituted by filing a notice of motion.

(2)  The notice of motion must be filed within 28 days after the material date.

(3)  The registrar may extend time under subrule (2) within 28 days after the material date, or on a notice of motion filed within 28 days after the material date, and not otherwise.

(4)  The court may extend time under subrule (2) at any time.

(5)  For the purposes of this rule, the material date is the date of the direction, certificate, order, decision or other act to be reviewed.

(6)  This rule does not apply to:

(a)  an order to which Part 80 rule 23A (1) or Part 80A rule 21 (1) of the Supreme Court Rules 1970 applies, or

(b)  an order to which rule 16.1 of the Supreme Court (Corporations) Rules 1999 applies, or

(c)  a direction, certificate, order, decision or other act of a registrar in relation to the functions of the Court under the Mutual Recognition Act 1992 of the Commonwealth or the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.

rule 49.20 (previously rule 45.20): Am 2005 (395), Sch 1 [57]. Renumbered 2006 (391), Sch 1 [11]. Am 2007 (449), Sch 1 [7]–[9].

49.21–49.24 (Repealed)

rules 49.21–49.24 (previously rules 45.21–45.24): Renumbered 2006 (391), Sch 1 [11]. Rep 2007 (449), Sch 1 [10].

Part 50 Appeals to the court

pt 50 (previously Part 46): Renumbered 2006 (391), Sch 1 [11].

Division 1 Preliminary

pt 50, div 1 (previously Part 46, Div 1): Renumbered 2006 (391), Sch 1 [11].

50.1 Application (cf SCR Part 51A, rule 1)

This Part applies to any appeal, other than:

(a)  an appeal to the Supreme Court that, under the Supreme Court Act 1970, is assigned to the Court of Appeal, or

(b)  an appeal to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001, or

(c)  an appeal to the Supreme Court to which the provisions of Part 80A rule 32 (1) of the Supreme Court Rules 1970 or rule 14.1 of the Supreme Court (Corporations) Rules 1999 apply.

Note—

The provisions of this Part, like the other provisions of these rules, are subject to any Act that makes provision to the contrary.

rule 50.1 (previously rule 46.1): Am 2005 (808), Sch 1 [6] [7]. Renumbered 2006 (391), Sch 1 [11]. Am 2007 (579), Sch 1 [20].

50.2 Definitions (cf SCR Part 51A, rule 2)

(1)  In this Part:

court below, in relation to an appeal, means the court in which, or the person or body by whom, the decision to which the appeal relates was made.

decision includes a judgment, order, opinion, direction or determination.

higher court, in relation to an appeal, means the court to which the appeal is made.

material date, in relation to an appeal, means:

(a)  if the appeal is from the decision of a court, the date on which the decision is pronounced or given, and

(b)  if the appeal is from any other person or body, the date on which notice of the decision was given, by or on behalf of the person or body who made the decision, to the person who wishes to appeal.

Note—

See the definition of court in section 3 (1) of the Civil Procedure Act 2005.

(2)  For the avoidance of doubt, it is declared that, for the purposes of this Part:

(a)  a Commissioner of the Land and Environment Court, when exercising the functions of that Court under the Land and Environment Court Act 1979, is taken to be the court below, and

(b)  the Land and Environment Court, when hearing an appeal under section 56A of the Land and Environment Court Act 1979 against a decision made by a Commissioner of that Court in the exercise of those functions, is taken to be the higher court.

rule 50.2 (previously rule 46.2): Renumbered 2006 (391), Sch 1 [11]. Am 2007 (580), Sch 1 [10].

Division 2 Appeals

pt 50, div 2 (previously Part 46, Div 2): Renumbered 2006 (391), Sch 1 [11].

50.3 Time for appeal (cf SCR Part 51A, rule 3)

(1)  A summons commencing an appeal must be filed:

(a)  within 28 days after the material date, or

(b)  if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or

(c)  within such further time as the higher court may allow.

(2)  An application for an extension of time under subrule (1) (c) must be included in the summons commencing the appeal.

Note—

The provisions of this Part, like the other provisions of these rules, are subject to any Act that makes provision to the contrary. For example, section 24 of the Companion Animals Act 1998 provides that an appeal to the District Court against an order disqualifying a person from owning a dog may only be made within 28 days after the date on which the order is made.

rule 50.3 (previously rule 46.3): Am 2005 (808), Sch 1 [8]–[10]. Renumbered 2006 (391), Sch 1 [11].

50.4 Statement of ground

(1)  The summons commencing an appeal must be in the approved form and must contain a statement as to:

(a)  whether the appeal relates to the whole or part only, and what part, of the decision of the court below, and

(b)  what decision the plaintiff seeks in place of the decision of the court below.

(2)  The summons must also contain a statement setting out briefly but specifically the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below.

(3)  This rule does not apply to proceedings that are entered in the Commercial List in the Supreme Court.

rule 50.4 (previously rule 46.4): Renumbered 2006 (391), Sch 1 [11]. Am 2006 (391), Sch 1 [19] [20]; 2006 (716), Sch 1 [29]. Subst 2007 (327), Sch 1 [18]. Am 2007 (579), Sch 1 [21] [22].

50.5 Parties (cf SCR Part 51A, rule 6)

(1)  Each person who is directly affected by the relief sought in the appeal or is interested in maintaining the decision under appeal must be joined as a defendant.

(2)  If the court below is a person or body that is not a court, the person or body must be joined as a defendant.

(2A)  Subrule (2) does not apply to the extent to which a provision of these rules, or of any other Act or law, provides to the contrary.

(3)  The court may order the addition or removal of any person as a party to an appeal.

(4)  A person must not be made a plaintiff in the appeal without his or her consent.

rule 50.5 (previously rule 46.5): Renumbered 2006 (391), Sch 1 [11]. Am 2007 (579), Sch 1 [23].

50.6 Filing with court below (cf SCR Part 51A, rule 7)

If the court below is a court, the plaintiff must, on the date of instituting the appeal, file a copy of the summons commencing the appeal in the registry or office of that court.

rules 50.6–50.8 (previously rules 46.6–46.8): Renumbered 2006 (391), Sch 1 [11].

50.7 Stay (cf SCR Part 51A, rule 8)

An appeal to the court:

(a)  does not operate as a stay of proceedings under the decision of the court below, and

(b)  does not invalidate any intermediate act or proceedings,

except so far as the court (or, subject to any direction of the court, the court below) may direct.

rules 50.6–50.8 (previously rules 46.6–46.8): Renumbered 2006 (391), Sch 1 [11].

50.8 Security for costs (cf SCR Part 51A, rule 9)

(1)  In special circumstances, the court may order that such security as the court thinks fit be given of the costs of an appeal to the court.

(2)  Subject to subrule (1), no security for the costs of an appeal to the court is to be required.

(3)  Subrules (1) and (2) do not affect the powers of the court under rule 42.21 (which relates to security for costs).

rules 50.6–50.8 (previously rules 46.6–46.8): Renumbered 2006 (391), Sch 1 [11].

50.9 Date of hearing of appeal (cf SCR Part 14, rule 3, Part 51A, rule 10)

(1)  Unless the court orders otherwise, an appeal must not be heard before 21 days after service of the summons commencing the appeal.

(2)  This rule does not apply to proceedings that are entered in the Commercial List in the Supreme Court.

rule 50.9 (previously rule 46.9): Renumbered 2006 (391), Sch 1 [11]. Am 2006 (391), Sch 1 [21] [22].

Division 3 Cross-appeals

pt 50, div 3 (previously Part 46, Div 3): Renumbered 2006 (391), Sch 1 [11].

50.10 Cross-appeal (cf SCR Part 14, rule 3, Part 51A, rule 12)

(1)  If a defendant to an appeal wishes to appeal from the whole or part of a decision, that defendant must file a cross-summons.

(2)  The defendant must file the cross-summons:

(a)  within 28 days after service of the summons commencing the appeal on the defendant, or

(b)  if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after service of the summons commencing the appeal on the defendant, or

(c)  within such further time as the higher court may allow.

(3)  An application for an extension of time under subrule (2) (c) must form part of the cross-summons.

(4)  Subject to subrules (1), (2) and (3), Division 2 applies to the cross-appeal and cross-summons.

(5)  This rule does not apply to proceedings that are entered in the Commercial List in the Supreme Court.

rule 50.10 (previously rule 46.10): Renumbered 2006 (391), Sch 1 [11]. Am 2006 (391), Sch 1 [23] [24].

50.11 Notice of contention (cf SCR Part 14, rule 3, Part 51A, rule 13)

(1)  This rule applies if the defendant wishes to contend that the decision of the court below should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of that decision.

(2)  In the circumstances referred to in subrule (1), the defendant need not file a cross-summons but must instead file notice of that contention, stating, briefly but specifically, the grounds relied on in support of the contention.

(3)  The notice referred to in subrule (2) must be filed and served:

(a)  within 14 days after service of the summons commencing the appeal on the defendant, or

(b)  within such further time as the higher court may allow.

(4)  This rule does not apply to proceedings that are entered in the Commercial List in the Supreme Court.

rule 50.11 (previously rule 46.11): Renumbered 2006 (391), Sch 1 [11]. Am 2006 (391), Sch 1 [25] [26].

Division 4 Applications for leave to appeal and cross-appeal

pt 50, div 4 (previously Part 46, Div 4): Renumbered 2006 (391), Sch 1 [11].

50.12 Leave to appeal (cf SCR Part 51A, rule 2A)

(1)  A summons seeking leave to appeal must be filed:

(a)  within 28 days after the material date, or

(b)  if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or

(c)  within such further time as the higher court may allow.

(2)  An application for an extension of time under subrule (1) (c) must form part of the summons seeking leave to appeal.

(3)  The summons must be in the approved form and must contain a statement as to:

(a)  whether the appeal relates to the whole or part only, and what part, of the decision of the court below, and

(b)  what decision the plaintiff seeks in place of the decision of the court below.

(4)  The summons must also contain a statement of:

(a)  the nature of the case, and

(b)  the reasons why leave should be given, and

(c)  if applicable, the reasons why time to apply for leave should be extended,

setting out briefly but specifically the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below.

(5)  This rule does not apply to an appeal under section 39 of the Victims Support and Rehabilitation Act 1996.

Note—

See instead rule 50.23.

rule 50.12 (previously rule 46.12): Am 2005 (808), Sch 1 [11]. Renumbered 2006 (391), Sch 1 [11]. Am 2006 (716), Sch 1 [30]; 2007 (327), Sch 1 [19]; 2007 (579), Sch 1 [24] [25]; 2008 (338), Sch 1 [17] [18].

50.13 Leave to cross-appeal (cf SCR Part 51A, rule 2A)

(1)  A cross-summons seeking leave to cross-appeal must be filed:

(a)  within 14 days after service of the summons commencing the appeal or the summons seeking leave to appeal, or

(b)  within such further time as the higher court may allow.

(2)  An application for an extension of time under subrule (1) (b) must form part of the summons commencing the appeal.

(3)  The cross-summons must contain a statement as to:

(a)  whether the cross-appeal relates to the whole or part only, and what part, of the decision of the court below, and

(b)  what decision the defendant seeks in place of the decision of the court below.

(4)  The cross-summons must also contain a statement of:

(a)  the nature of the case, and

(b)  the reasons why leave should be given, and

(c)  if applicable, the reasons why time to apply for leave should be extended,

setting out briefly but specifically the grounds relied on in support of the cross-appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below.

rule 50.13 (previously rule 46.13): Renumbered 2006 (391), Sch 1 [11]. Am 2007 (327), Sch 1 [20]; 2007 (579), Sch 1 [26].

Division 5 General

pt 50, div 5 (rules 50.14–50.16) (previously Part 46, Div 5 (rules 46.14–46.16)): Renumbered 2006 (391), Sch 1 [11].

50.14 Reasons for decision, transcript and other parts of the record of the court below

(1)  Unless the court otherwise orders, the plaintiff must prepare, file and serve on each defendant, not later than 3 days before the date fixed for the hearing of the summons, an affidavit to be relied on at the appeal or application for leave to appeal that annexes or exhibits:

(a)  a copy of the reasons for the decision of the court below, unless the court below has not given, and does not intend to give, written reasons, and

(b)  a copy of the transcript of the proceedings in the court below, unless a transcript cannot be obtained in respect of proceedings of that type, and

(c)  a copy of any exhibit, affidavit or other document from the proceedings in the court below that the plaintiff wishes to be considered at the hearing of the appeal or proposed appeal.

(2)  The defendant may prepare an affidavit to be relied on at the appeal, cross-appeal or application for leave to appeal or cross-appeal any exhibit, affidavit or other document from the proceedings in the court below that the defendant wishes to be considered at the hearing of the appeal, cross-appeal or application for leave to appeal or cross-appeal in addition to any exhibit, affidavit or other document referred to in subrule (1) (c).

(3)  The higher court may make further directions for the filing and service of an affidavit under subrule (1) or (2) and for the lodging and service of any exhibits to such an affidavit.

50.15 Directions for service (cf SCR Part 51A, rule 6A)

(1)  If the court makes an order granting an extension of time for applying for leave to appeal or cross-appeal, the court:

(a)  may hear the application for leave on the documents already filed without requiring a summons for the application, or

(b)  may give directions for the filing of such additional documents, and for the service of such documents (including documents already filed), as it thinks fit.

(2)  If the court makes an order granting leave to appeal or cross-appeal, the court:

(a)  may hear the appeal or cross-appeal on the documents already filed without requiring a summons or cross-summons for the appeal or cross-appeal, or

(b)  may give directions for the filing of such additional documents, and for the service of such documents (including documents already filed), as it thinks fit.

50.16 Conduct of appeal

(1)  If the decision under appeal has been given after a hearing, the appeal is to be by way of rehearing.

(2)  The higher court has the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning:

(a)  amendment, and

(b)  the drawing of inferences and the making of findings of fact, and

(c)  the assessment of damages and other money sums.

(3)  The higher court may receive further evidence.

(4)  Despite subrule (3), where the appeal is from a judgment after a trial or hearing on the merits, the higher court may not receive further evidence except on special grounds.

(5)  Subrule (4) does not apply to evidence concerning matters occurring after the trial or hearing.

(6)  The higher court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made.

Division 6 Appeals to District Court under section 91 of Children and Young Persons (Care and Protection) Act 1998

pt 50, div 6: Ins 2008 (338), Sch 1 [19].

50.17 Definitions (cf DCR Part 6, rule 35)

In this Division:

appeal means appeal to the District Court under section 91 of the Children and Young Persons (Care and Protection) Act 1998.

child, Children’s Court, Department and Director-General have the same meanings as they have in the Children and Young Persons (Care and Protection) Act 1998.

Children’s Registrar has the same meaning as it has in the Children’s Court Act 1987.

pt 50, div 7 (rules 50.17–50.25): Ins 2008 (338), Sch 1 [19].

50.18 Defendants in appeal (cf DCR Part 6, rule 37)

(1)  The defendants in an appeal against a decision in respect of the care of a child are as follows:

(a)  if the Director-General is not the plaintiff, the Director-General,

(b)  if the child is of or above the age of 10 years and is not the plaintiff, the child,

(c)  any person (not being the plaintiff or an officer of the Department) who is responsible for the child and can reasonably be located,

(d)  any person (not being the plaintiff or an officer of the Department) to whom leave was granted under section 98 (3) of the Children and Young Persons (Care and Protection) Act 1998 in respect of the proceedings leading to the decision,

(e)  any person whom the District Court orders be joined as a defendant in the appeal.

(2)  An order may be made as referred to in subrule (1) (e) only if the District Court considers that the person’s joinder as a defendant is necessary to the determination of the appeal.

pt 50, div 7 (rules 50.17–50.25): Ins 2008 (338), Sch 1 [19].

50.19 Children’s Court record (cf DCR Part 6, rule 41)

As soon as practicable after the filing in the Children’s Court of a copy of the summons commencing an appeal against a decision of that Court under rule 50.6, a Children’s Registrar must forward the record of the proceedings leading to the decision to the registrar of the District Court at the proclaimed place (within the meaning of the District Court Act 1973) where the listing of the appeal for directions is to occur.

pt 50, div 7 (rules 50.17–50.25): Ins 2008 (338), Sch 1 [19].

50.20 Notice of fresh evidence (cf DCR Part 6, rule 43)

If a party to an appeal against a decision intends to adduce on the appeal fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision was made, the party must, as soon as practicable after becoming aware of the fresh, additional, or substituted evidence, serve on every other party notice of the nature and extent of that evidence.

pt 50, div 7 (rules 50.17–50.25): Ins 2008 (338), Sch 1 [19].

Division 7 Appeals to District Court under section 39 of Victims Support and Rehabilitation Act 1996

pt 50, div 7 (rules 50.17–50.25): Ins 2008 (338), Sch 1 [19].

50.21 Definitions (cf DCR Part 6, rule 60A)

In this Division:

appeal means appeal under section 39 of the Victims Support and Rehabilitation Act 1996.

application for leave means application for the leave of the District Court under section 39 (1) of the Victims Support and Rehabilitation Act 1996 to institute an appeal.

Tribunal means the Victims Compensation Tribunal constituted under section 59 of the Victims Support and Rehabilitation Act 1996.

pt 50, div 7 (rules 50.17–50.25): Ins 2008 (338), Sch 1 [19].

50.22 Venue (cf DCR Part 6, rule 60B)

Subject to any order of the Court for a change of venue, an application for leave and an appeal may each be heard and determined at any proclaimed place (within the meaning of the District Court Act 1973).

pt 50, div 7 (rules 50.17–50.25): Ins 2008 (338), Sch 1 [19].

50.23 Application for leave (cf DCR Part 6, rule 60C)

(1)  An application for leave must be made by summons.

(2)  An application for leave must be filed within:

(a)  the period specified in section 39 (2) (a) of the Victims Support and Rehabilitation Act 1996, or

(b)  such further time as the Court may allow under section 39 (2) (b) of that Act.

(3)  An application to allow further time to appeal under section 39 (2) (b) of the Victims Support and Rehabilitation Act 1996 must be made by summons.

(4)  An application for leave must include or be accompanied by a statement identifying the determination sought to be appealed against, a statement of the question of law on which it is sought to appeal and the grounds of the proposed appeal.

(5)  The defendant in an application for leave or an application to allow further time to appeal is the Victims Compensation Fund Corporation constituted under section 66 of the Victims Support and Rehabilitation Act 1996.

pt 50, div 7 (rules 50.17–50.25): Ins 2008 (338), Sch 1 [19].

50.24 Tribunal record (cf DCR Part 6, rule 60D)

The Registrar of the Tribunal must, as soon as practicable after delivery of a copy of a summons commencing an appeal under rule 50.6, forward to the registrar of the District Court at the proclaimed place (within the meaning of the District Court Act 1973) at which the appeal is to be heard the record of the proceedings in the Tribunal leading to the determination sought to be appealed against.

pt 50, div 7 (rules 50.17–50.25): Ins 2008 (338), Sch 1 [19].

50.25 Appeal (cf DCR Part 6, rule 60E)

If the Court grants leave to institute an appeal, it may give directions as to the extent to which matters before it, and decisions made by it, on the application for leave are admissible or binding on the hearing of the appeal, and may:

(a)  proceed immediately to hear and determine the appeal, or

(b)  give such directions as to filing and service of documents, conferences, fixing of a hearing date, and any other matter as appear requisite for the hearing and determination of the appeal.

pt 50, div 7 (rules 50.17–50.25): Ins 2008 (338), Sch 1 [19].

Part 51 Court of Appeal

pt 51: Ins 2007 (448), Sch 1 [1].

Division 1 Preliminary

pt 51, div 1: Ins 2007 (448), Sch 1 [1].

51.1 Application of Part (cf SCR Part 51, rule 3)

(1)  This Part applies to any proceedings (whether or not appeal proceedings) that are assigned to the Court of Appeal.

Note 1—

Part 50 applies to appeals to the Supreme Court that are not assigned to the Court of Appeal under the Supreme Court Act 1970. See rule 50.1 (a).

Note 2—

References in this Part to proceedings in the Court generally are references to any proceedings in the Court (including appeal proceedings), except in so far as the context or subject-matter otherwise indicates or requires.

(2)  Subject to any relevant practice note, this Part extends to proceedings in the Court commenced before 1 January 2008.

Note—

Section 14 of the Civil Procedure Act 2005 also provides that, in relation to particular civil proceedings, a court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.

(3)  Subject to this Part, the other provisions of these rules apply, so far as applicable, to proceedings in the Court.

(4)  For the avoidance of doubt, the rules referred to in subrule (3) have effect subject to the following modifications:

(a)  a reference to a plaintiff includes a reference to a person who commences proceedings in the Court (whether as an appellant or otherwise),

(b)  a reference to a defendant includes a reference to a respondent (or cross-respondent) in proceedings in the Court,

(c)  a reference to an originating process includes a reference to a notice of appeal or notice of cross-appeal,

(d)  such other modifications as are necessary.

pt 51, div 2 (rules 51.1–51.5): Ins 2007 (448), Sch 1 [1].

51.2 Interpretation (cf SCR Part 51, rule 2)

In this Part:

appeal:

(a)  includes an appeal from a decision in proceedings in the Supreme Court or a specified tribunal within the meaning of section 48 (1) (a) of the Supreme Court Act 1970, and

(b)  does not include proceedings to which Part 28 applies (except an appeal from a decision of the Supreme Court in proceedings to which that Part applies), and

(c)  does not include an application for the variation or discharge of an order of a Judge of Appeal or of the Registrar.

Appeal Book—see rules 51.25 and 51.26.

appeal proceedings means proceedings in the Court that are commenced by filing and serving a summons seeking leave to appeal or a notice of appeal.

appellant means:

(a)  a party that files a notice of appeal in the Court, and

(b)  any other party joined as an appellant.

applicant means:

(a)  in relation to a notice of intention to appeal, the person that files and serves the notice under this Part, or

(b)  in relation to any proceedings in the Court (other than an appeal or cross-appeal):

(i)  a party that files originating process for the proceedings, and

(ii)  any other party joined as an applicant.

Black Book—see rules 51.26 (1) (b) and 51.28.

Blue Book—see rules 51.26 (1) (c) and 51.29.

Combined Book—see rule 51.26 (2).

Court means the Court of Appeal.

Note—

Section 13 of the Civil Procedure Act 2005 enables the Chief Justice of the Supreme Court, by instrument in writing, to direct that any function of the Court under that Act or these rules may be exercised by such registrars or other officers of the Supreme Court, and in such circumstances and subject to such conditions, as are specified in the instrument.

court below means the court, person or body that made the decision to which a notice of intention to appeal or appeal proceedings relate.

cross-appellant means a respondent in appeal proceedings who has filed a notice of cross-appeal.

decision includes a judgment, order, verdict, opinion, direction or determination.

decision below means the decision of the court below to which a notice of intention to appeal or appeal proceedings relate.

exhibit includes a document or thing marked for identification (whether or not it is admitted in evidence).

interested party means an appellant or interested respondent.

interested respondent means a respondent (other than a respondent who is a submitting party).

material date, in relation to a decision below to which a notice of intention to appeal or appeal proceedings relate, means:

(a)  in the case of a judgment given in proceedings in the Supreme Court—the date on which the judgment is given, and

(b)  in the case of any other judgment in proceedings in the Supreme Court—the date of entry, and

(c)  in the case of an order in proceedings in the Supreme Court—the date on which the order is made, and

(d)  in the case of a verdict in proceedings in the Supreme Court—the date on which the verdict is given, and

(e)  in the case of any other decision (whether in proceedings in the Supreme Court or not)—the date on which the decision is pronounced or given.

necessary party means a person required by rule 51.4 to be joined in the proceedings.

notice of intention to appeal—see rule 51.6.

Orange Book—see rules 51.26 (1) (d) and 51.30.

proper officer, in relation to a court or tribunal, means:

(a)  the registrar, or

(b)  if there is no registrar, the officer who is responsible for the custody of records and exhibits in the proceedings concerned.

prospective respondent, in relation to a notice of intention to appeal, means:

(a)  a party in the court below, and

(b)  any other person who would be required by rule 51.4 to be joined in appeal proceedings.

Red Book—see rules 51.26 (1) (a) and 51.27.

Registrar means the Registrar of the Court.

Note—

Section 13 of the Civil Procedure Act 2005 enables the Chief Justice of the Supreme Court, by instrument in writing, to direct that any function of the Court under that Act or these rules may be exercised by such registrars or other officers of the Supreme Court, and in such circumstances and subject to such conditions, as are specified in the instrument.

relevant originating process means:

(a)  if leave to appeal or cross-appeal is required—a summons seeking leave to appeal or a cross-summons seeking leave to cross-appeal, or

(b)  in any other case—a notice of appeal or cross-appeal.

Reporting Services Branch means the Reporting Services Branch of the Attorney General’s Department.

respondent means any party other than an appellant or applicant.

submitting party means a party that has submitted to the judgment of the Court by filing a notice of appearance under rule 6.11.

verdict includes a finding or assessment.

White Folder—see rule 51.12 (1).

pt 51, div 2 (rules 51.1–51.5): Ins 2007 (448), Sch 1 [1].

51.3 Application of rules to notices of cross-appeal (cf SCR Part 51, rule 18 (3))

Subject to this Part (particularly, rule 51.17), the rules relating to a notice of appeal extend to a notice of cross-appeal with necessary modifications.

pt 51, div 2 (rules 51.1–51.5): Ins 2007 (448), Sch 1 [1].

Division 2 Parties and appearances

pt 51, div 2 (rules 51.1–51.5): Ins 2007 (448), Sch 1 [1].

51.4 Parties (cf SCR Part 51, rule 9)

(1)  Each person who:

(a)  is directly affected by the relief sought, or

(b)  is interested in maintaining the decision of the court below,

must be joined as a respondent.

(2)  The court below or other decision-maker is not required to be joined as a respondent in appeal proceedings, but must be joined in other proceedings in the Court.

(3)  The Court may order the addition or removal of any party.

(4)  A person must not be made an applicant or appellant without that person’s consent.

(5)  An applicant or appellant who considers that respondents need not be separately represented may notify them that objection will be taken to more than one set of costs being allowed between them.

(6)  An applicant or appellant who considers that a respondent should file a notice of appearance under rule 6.11 and take no active part in the proceedings may notify that party that objection will be taken to any order for costs, incurred after that date, other than costs as a submitting party, being made in favour of that respondent.

(7)  The failure by a party to give notice under subrule (5) or (6) does not limit the powers of the Court with respect to the costs of the proceedings.

pt 51, div 2 (rules 51.1–51.5): Ins 2007 (448), Sch 1 [1].

51.5 No step without notice of appearance

(1)  Except by leave of the Court, a party may not take any step in proceedings in the Court (including an appearance before the Court) without entering an appearance in the proceedings.

(2)  Subrule (1) does not apply to a respondent who:

(a)  applies for an order under rule 12.11 (Setting aside originating process etc), or

(b)  makes an application in relation to the setting aside or enforcement of a judgment of the Court.

(3)  A person who is not a party may not take any step in the proceedings (including an appearance before the Court) unless the person has filed a notice of address for service.

pt 51, div 2 (rules 51.1–51.5): Ins 2007 (448), Sch 1 [1].

Division 3 Notices of intention to appeal

pt 51, div 3: Ins 2007 (448), Sch 1 [1].

51.6 Notices of intention to appeal

A notice of intention to appeal is a notice that the applicant intends to file:

(a)  a notice of appeal, or

(b)  if necessary, a summons seeking leave to appeal,

within 3 months after the material date or such other period as the Court may order.

rule 51.6: Ins 2007 (448), Sch 1 [1].

51.7 Notices of intention to appeal cannot be filed in certain cases

A notice of intention to appeal may not be filed if:

(a)  a summons seeking leave to appeal or a notice of appeal has been filed, or

(b)  an Act or statutory rule (other than these rules) specifies the period within which the appeal or an application for leave to appeal must be commenced.

rule 51.7: Ins 2007 (448), Sch 1 [1]. Am 2007 (579), Sch 3 [1].

51.8 Filing and service of a notice of intention to appeal (cf SCR Part 51, rules 4 (1) and (2) and 6 (1))

A notice of intention to appeal must be filed and served on each prospective respondent within 28 days after the material date.

Note—

A person who files and serves a notice of intention to appeal must also file or lodge a copy of the notice with the court below—see rule 51.42.

rules 51.8, 51.9: Ins 2007 (448), Sch 1 [1].

51.9 Effect of service of notice of intention to appeal (cf SCR Part 51, rules 4 (3)–(7), 4A (2) and 6 (2) and (4))

(1)  An applicant who has filed and served a notice of intention to appeal must file and serve the relevant originating process on each necessary party:

(a)  within 3 months after the material date, or

(b)  within such other period as the Court may order.

(2)  An application under subrule (1) (b) may be included in the originating process.

(3)  The filing and service of a notice of intention to appeal does not operate to commence proceedings in the Court.

rules 51.8, 51.9: Ins 2007 (448), Sch 1 [1].

51.9A Service of notice of intention to appeal by prospective respondent

(1)  A prospective respondent who intends only to cross-appeal need not file a notice of intention to appeal in order to preserve the right to cross-appeal.

(2)  However, a prospective respondent who wishes to preserve a right to seek leave to appeal or to appeal in the event that the applicant giving notice of intention to appeal (the original applicant) does not commence the proceedings contemplated by the notice may, within 14 days of receiving the notice of intention to appeal, file and serve a notice of intention to appeal.

(3)  If a prospective respondent files and serves a notice of intention to appeal in accordance with subrule (2) and the original applicant does not commence the proceedings contemplated by the applicant’s notice of intention to appeal, the prospective respondent may file and serve the relevant originating process within 28 days of the expiration of the time allowed under rule 51.9 for the original applicant to commence proceedings.

rule 51.9A: Ins 2008 (63), Sch 1 [3].

Division 4 Applications for leave to appeal or cross-appeal

pt 51, div 4: Ins 2007 (448), Sch 1 [1].

Subdivision 1 Making applications for leave

pt 51, div 4, sdiv 1: Ins 2007 (448), Sch 1 [1].

51.10 Filing and service of summons seeking leave to appeal (cf SCR Part 51, rule 4 (1), (3) and (5)–(7))

(1)  A summons seeking leave to appeal must be filed and served on each necessary party:

(a)  if a notice of intention to appeal has been filed and served under this Part—within the time allowed under rule 51.9, or

(b)  in any other case—within 28 days after the material date.

Note—

A person who files and serves a summons seeking leave to appeal must also file or lodge a copy of the summons with the court below—see rule 51.42.

(2)  The Court may extend time under subrule (1) (b) at any time.

Note—

Rule 51.9 provides for the extension of time for the filing and service of a relevant originating process where a notice of intention to appeal has been filed and served under this Part.

(3)  An application under subrule (2) may be included in the summons seeking leave to appeal.

(4)  A summons seeking leave to appeal must state whether the appellant has filed and served a notice of intention to seek leave to appeal, and the date the notice was served on the prospective respondent or on the last of the prospective respondents.

rule 51.10: Ins 2007 (448), Sch 1 [1]. Am 2007 (579), Sch 3 [2].

51.11 Filing and service of cross-summons seeking leave to cross-appeal (cf SCR Part 51, rule 4 (2), (4) and (5)–(7))

(1)  A respondent who requires leave to cross-appeal must file a cross-summons seeking leave to cross-appeal and serve it on each necessary party within:

(a)  28 days after the filing of a summons seeking leave to appeal, or

(b)  28 days after the filing of a notice of appeal,

whichever is the earlier.

Note—

A person who files and serves a cross-summons seeking leave to cross-appeal must also file or lodge a copy of the cross-summons with the court below—see rule 51.42.

(2)  The Court may extend time under subrule (1) at any time.

(3)  An application under subrule (2) may be included in the cross-summons seeking leave to cross-appeal.

rule 51.11: Ins 2007 (448), Sch 1 [1].

Subdivision 2 Supporting documentation

pt 51, div 4, sdiv 2: Ins 2007 (448), Sch 1 [1].

51.12 Party to file and serve White Folder with summons seeking leave (cf SCR Part 51, rule 4B)

(1)  A person seeking leave to appeal or cross-appeal (the applicant) must file, in triplicate, a folder (the White Folder) and serve that folder with the summons or cross-summons (as the case may be).

Note—

Rule 10.1 (1) requires a party that files a document to serve copies on each other active party as soon as is practicable, unless the court orders otherwise.

(2)  The White Folder must contain:

(a)  a copy of the summons seeking leave to appeal or cross-summons seeking leave to cross-appeal (as the case may be), and

(b)  a summary of the applicant’s argument in accordance with subrule (3), and

(c)  the reasons for judgment (if any) or the summing up (if any) in the court below, certified by or on behalf of the court below, and

(d)  a draft notice of appeal or notice of cross-appeal (as the case may be), and

(e)  any other documents (other than documents to be filed by the respondent) that are necessary for disposal of the application.

(3)  The summary of argument:

(a)  must not exceed 10 pages, and

(b)  must be signed by the barrister or solicitor who prepares it or, where the applicant is not represented by a barrister or solicitor, by the applicant, and

(c)  must have the following typed or printed in a neat and legible manner under the signature referred to in paragraph (b):

(i)  the name of the signatory,

(ii)  a telephone number at which the signatory can be contacted,

(iii)  if available, the signatory’s facsimile number,

(iv)  if available, the signatory’s email address.

(4)  The summary of argument must state:

(a)  the nature of the applicant’s case, and

(b)  the questions involved, and

(c)  briefly, the applicant’s argument, and

(d)  the reasons why leave should be granted, and

(e)  any reasons why an order for costs should not be made in favour of the respondent if the application is refused, and

(f)  whether the applicant consents to the application for leave being dealt with in the absence of the public and without the attendance of any person, and

(g)  whether the application should be heard with the argument on the appeal, and why, and

(h)  a list of relevant authorities and legislation.

(5)  Each White Folder must:

(a)  be white in colour, and

(b)  be approximately A4 in size, and

(c)  be covered with a clearview PVC (or similar) binder capable of holding an A4 insert, and

(d)  be 38 millimetres wide and contain 2 D rings, to hold documents, and

(e)  contain labelled dividers separating the contents in a convenient way, including dividers to receive the respondent’s documents and the applicant’s reply, and

(f)  have its pages numbered consecutively.

rule 51.12: Ins 2007 (448), Sch 1 [1].

51.13 Opposing party to file a response (cf SCR Part 51, rule 4C)

(1)  Subject to subrule (3), a party opposing an application for leave to appeal or cross-appeal (an opposing party) must, within 28 days after the filing of the White Folder or the documents referred to in subrule (3), file the opposing party’s response.

Note—

Rule 10.1 (1) requires a party that files a document to serve copies on each other active party as soon as is practicable, unless the court orders otherwise.

(2)  A response must:

(a)  state that the opposing party:

(i)  consents to the leave sought, or

(ii)  submits to the orders of the Court, or

(iii)  submits to the orders of the Court save as to costs, or

(b)  state:

(i)  briefly, the opposing party’s argument, and

(ii)  the reasons why leave should or should not be granted, and

(iii)  whether the opposing party consents to the application for leave being dealt with in the absence of the public and without the attendance of any person, and

(iv)  whether the application should be heard with the argument on the appeal, and why, and

(v)  any other relevant matters, including terms to which leave should be subject and contentions concerning costs, and

(vi)  a list of relevant authorities and legislation.

(3)  If the opposing party applies for leave to cross-appeal, the opposing party must file with the response the following documents:

(a)  a copy of the cross-summons seeking leave to cross-appeal,

(b)  a summary of the opposing party’s argument in favour of leave to cross-appeal,

(c)  a draft notice of cross-appeal,

(d)  any other documents, not already filed, other than documents to be filed by the other party, that are necessary for disposal of the application for leave to cross-appeal.

Note—

Rule 10.1 (1) requires a party that files a document to serve copies on each other active party as soon as is practicable, unless the court orders otherwise.

(4)  An opposing party wishing to raise a matter that is required to be raised by notice of contention rather than by means of a cross-appeal must file a draft notice of contention with the response.

(5)  The response, and the summary referred to in subrule (3) (if any), must:

(a)  not exceed 10 pages, and

(b)  be signed by the barrister or solicitor who prepares it or, where the opposing party is not represented by a barrister or solicitor, by the party, and

(c)  have the following typed or printed in a neat and legible manner under the signature referred to in paragraph (b):

(i)  the name of the signatory,

(ii)  a telephone number at which the signatory can be contacted,

(iii)  if available, the signatory’s facsimile number,

(iv)  if available, the signatory’s email address, and

(d)  be hole punched for insertion in the White Folder, and

(e)  have its pages numbered consecutively.

(6)  The summary referred to in subrule (3) must state:

(a)  the nature of the opposing party’s case, and

(b)  the questions involved, and

(c)  briefly, the opposing party’s argument, and

(d)  the reasons why leave to cross-appeal should be granted, and

(e)  any reasons why an order for costs should not be made in favour of the applicant for leave to appeal if the application for leave to cross-appeal is refused, and

(f)  whether the opposing party consents to the application for leave to cross-appeal being dealt with in the absence of the public and without the attendance of any person, and

(g)  where applicable, that, and the reasons why, it is suitable for oral argument of the cross-appeal to proceed concurrently with the leave application (the cross-appeal being subject to the granting of the application), and

(h)  a list of relevant authorities and legislation in tabular form.

(7)  The summary referred to in subrule (3) must contain labelled dividers separating the contents in a convenient way including, if application is made for leave to cross-appeal, a divider to receive the applicant’s response and the opposing party’s reply.

rule 51.13: Ins 2007 (448), Sch 1 [1]. Am 2007 (579), Sch 3 [3].

Subdivision 3 Powers on applications for leave

pt 51, div 4, sdiv 3 (rules 51.14, 51.15): Ins 2007 (448), Sch 1 [1].

51.14 Concurrent hearings in relation to leave applications

(1)  The Court may deal with applications for the following orders in the absence of the public and without the attendance of any person:

(a)  an order that 2 or more applications for leave to appeal or cross-appeal be heard concurrently,

(b)  an order that an application for leave to appeal or cross-appeal be heard concurrently with the argument on the appeal or cross-appeal.

Note—

Section 46 of the Supreme Court Act 1970 provides that a single Judge of Appeal may exercise the powers of the Court to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court.

(2)  If the Court makes an order under subrule (1) (b), the parties must, within 28 days (but subject to any directions given by the Court), cause any necessary additional documents to be added to the White Folder.

pt 51, div 4, sdiv 3 (rules 51.14, 51.15): Ins 2007 (448), Sch 1 [1].

51.15 Court may determine application for leave without attendance (cf SCR Part 51, rule 4D)

An application for leave to appeal or to cross-appeal may be dealt with by the Court in the absence of the public and without the attendance of any person if:

(a)  the application is not opposed, or

(b)  each active party consents.

pt 51, div 4, sdiv 3 (rules 51.14, 51.15): Ins 2007 (448), Sch 1 [1].

Division 5 Appeals and cross-appeals

pt 51, div 5: Ins 2007 (448), Sch 1 [1].

Subdivision 1 Institution of appeals and cross-appeals

pt 51, div 5, sdiv 1 (rules 51.16, 51.17): Ins 2007 (448), Sch 1 [1].

51.16 Time for filing and service of notice of appeal (cf SCR Part 51, rules 5 and 6 (1) and (3))

(1)  A notice of appeal must be filed and served on each necessary party:

(a)  if the notice of appeal is filed pursuant to leave to appeal—within 7 days after leave is given or such other time as the Court may fix, or

(b)  if a notice of intention to appeal has been filed and served under this Part and the notice of appeal is not filed pursuant to leave—as allowed under rule 51.9, or

(c)  if a notice of intention to appeal has not been filed and served under this Part and the notice of appeal is not filed pursuant to leave to appeal—within 28 days after the material date or such other time as the Court may fix.

Note 1—

Rule 51.20 requires any notice of appeal to specify a return day.

Note 2—

A person who files and serves a notice of appeal must also file or lodge a copy of the notice with the court below—see rule 51.42

(2)  The Court may extend time under subrule (1) (a) or (c) at any time.

Note—

Rule 51.9 provides for the extension of the time for the filing and service of a relevant originating process when a notice of intention to appeal has been filed and served under this Part.

(3)  A party applying for an extension under subrule (1) (a) or (c) must lodge and serve the draft notice of appeal with the application.

pt 51, div 5, sdiv 1 (rules 51.16, 51.17): Ins 2007 (448), Sch 1 [1].

51.17 Filing and service of notice of cross-appeal (cf SCR Part 51, rule 18)

(1)  A respondent who wishes to seek the discharge or variation of the decision below (or part of the decision below) may file and serve a notice of cross-appeal.

Note—

A respondent to an appeal who is entitled to cross-appeal should file a notice of cross-appeal only if the respondent wishes to vary the decision below. If the respondent wishes to have the decision below affirmed on grounds other than those relied on by the court below, the respondent should file and serve a notice of contention as provided by rule 51.40 rather than a notice of cross-appeal. If the respondent objects to the competency of the appeal, the respondent should file and serve a notice of objection to the competency of the appeal as provided by rule 51.41.

(2)  A notice of cross-appeal must be filed and served on each necessary party:

(a)  if the notice of cross-appeal is filed pursuant to leave to cross-appeal—within 7 days after leave to cross-appeal is given or such other time as the Court may fix, or

(b)  in any other case—within:

(i)  14 days after the filing of a summons seeking leave to appeal or a notice of appeal, whichever is the earlier, or

(ii)  such other time as the Court may fix.

Note—

A person who files and serves a notice of cross-appeal must also file or lodge a copy of the notice with the court below—see rule 51.42.

(3)  The Court may extend time under subrule (2) (a) or (b) (ii) at any time.

Note—

Rule 51.9 provides for the extension of the time for the filing and service of a relevant originating process when a notice of intention to appeal has been filed and served under this Part.

(4)  A party applying for an extension under subrule (2) must lodge and serve the draft notice of cross-appeal with the application.

pt 51, div 5, sdiv 1 (rules 51.16, 51.17): Ins 2007 (448), Sch 1 [1].

Subdivision 2 Notices of appeal and cross-appeal

pt 51, div 5, sdiv 2: Ins 2007 (448), Sch 1 [1].

51.18 Contents of notice of appeal (cf SCR Part 51, rule 11)

(1)  A notice of appeal must state:

(a)  the statutory provision under which the appeal is brought, and

(b)  whether it is filed pursuant to leave, and the date leave was given, and

(c)  whether the appellant has filed and served a notice of intention to appeal, and the date it was served on the prospective respondent or on the last of the prospective respondents, and

(d)  whether the appeal is from the whole or part only, and what part, of the decision below, and

(e)  briefly, but specifically, the grounds relied on in support of the appeal, and

(f)  what judgment, order, verdict or determination the appellant seeks, and

(g)  that, before any attendance before the Court by or on behalf of the respondent, a notice of appearance must be filed if required.

Note—

Rule 51.5 (2) provides for circumstances in which a respondent need not file a notice of appearance.

(2)  Without limiting subrule (1), the appellant must also specify in the notice of appeal any material facts that the appellant contends that the court below should, or should not, have found.

rule 51.18: Ins 2007 (448), Sch 1 [1]. Am 2008 (63), Sch 1 [4].

51.19 How claims for reinstatement or restitution to be made in appeal or cross-appeal

An appellant or cross-appellant who seeks an order for reinstatement or restitution must include in the notice of appeal or notice of cross-appeal:

(a)  a claim for the order and the form of the order, and

(b)  where restitution is sought—any claim for interest that is at a rate other than the relevant rate set out in rule 36.7 (1).

Note—

As to the practice of the Court in awarding interest where money is ordered to be repaid by way of restitution on the setting aside of a judgment, see Heydon v NRMA Ltd (No 2)(2001) 53 NSWLR 600 at 609.

rule 51.19: Ins 2007 (448), Sch 1 [1]. Am 2010 (172), Sch 1 [10].

51.20 Notice of appeal to specify return day (cf SCR Part 51, rule 42 (1))

(1)  A notice of appeal must state a return day.

(2)  The return day may be fixed by the Court or obtained from the registry.

(3)  If a return day is obtained from the registry and the notice of appeal is to be served outside New South Wales, the return day is to be not less than one month after the date of filing of the notice of appeal.

Note—

Rule 10.18 permits the service of documents (including originating process) to be effected in certain circumstances at the address for service provided for the court below.

rules 51.20–51.23: Ins 2007 (448), Sch 1 [1].

51.21 Alteration of return day in notice of appeal (cf SCR Part 5, rule 5A)

The Court may, by notice given to the parties by telephone or otherwise, vary the return day for a notice of appeal to a different day, and may authorise the parties’ solicitors to make corresponding alterations to the copies of the notices of appeal held by them.

rules 51.20–51.23: Ins 2007 (448), Sch 1 [1].

51.22 Absence of restrictions on appeals as of right to be shown by affidavit (cf SCR Part 51, rule 8)

(1)  This rule applies if an appeal or cross-appeal as of right is restricted by any Act by reference to:

(a)  a specified amount or value, or

(b)  any other specified circumstance or matter (such as a restriction based on questions of law).

(2)  The appellant or cross-appellant must, on filing the notice of appeal or cross-appeal, file and serve on each necessary party an affidavit that:

(a)  identifies the nature of the restriction (including a reference to the provision of the Act that imposes the restriction), and

(b)  sets out the material facts on which the appellant or cross-appellant relies to show that the restriction does not apply.

rules 51.20–51.23: Ins 2007 (448), Sch 1 [1].

51.23 Amendment of notice of appeal (cf SCR Part 51, rule 17)

Part 19 (Amendment) applies to the amendment of a notice of appeal in the same way it applies to the amendment of a statement of claim.

Note—

For example, rule 19.1 provides that a plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial.

rules 51.20–51.23: Ins 2007 (448), Sch 1 [1].

Subdivision 3 Appeal Books and other supporting documentation

pt 51, div 5, sdiv 3: Ins 2007 (448), Sch 1 [1].

51.24 Registrar to collect certain papers when notice of appeal filed (cf SCR Part 51, rules 30 and 30A)

(1)  On the filing of a notice of appeal, the Registrar:

(a)  may obtain from the Reporting Services Branch the original of the transcript (if any) of the proceedings in the court below, and

(b)  must obtain from the proper officer of the court below:

(i)  the exhibits, and

(ii)  the list of exhibits and certificate under rule 51.43, and

(iii)  all other relevant documents before the court below, together with a list, certified by the proper officer of the court below, and

(iv)  the reasons for judgment (if any) or the summing up (if any) in the court below certified by or on behalf of the court below.

(2)  Unless the Appeal Book is prepared by the Registrar, the Registrar must allow the party required to prepare the Appeal Book to have custody of the documents necessary to prepare it.

(3)  The party having custody of documents pursuant to subrule (2) must return them intact to the Registrar on completion of the Red Book, at which time the Registrar must make them available to other interested parties for the purpose of preparing written submissions and chronologies.

(4)  Documents are to be made available to more than one party in accordance with an agreed schedule of access or as determined by the Registrar.

(5)  Subject to this rule, the Registrar must retain the documents obtained under subrule (1) until disposal of the appeal and then return them to the officers or persons from whom they were obtained.

rule 51.24: Ins 2007 (448), Sch 1 [1].

51.25 Preparation of Appeal Book (cf SCR Part 51, rule 31)

(1)  Unless the Court directs otherwise, the Appeal Book must be prepared by the appellant in accordance with this rule.

(2)  It must be divided into sections in accordance with rule 51.26.

(3)  The pages in each section must be numbered consecutively and, if a section exceeds 300 pages, it must be bound in separate volumes of not more than 250 pages.

(4)  The contents must be printed, or otherwise reproduced, with a 5 millimetre margin on the right hand side of each page and evenly marked in the margin with the letters “A” to “Z”.

(5)  Each section must have a title page setting out the full and correct title of the proceedings, including the following:

(a)  title of the court below,

(b)  names of the solicitors for each party,

(c)  the address for service for each party,

(d)  the telephone, email address, facsimile and reference number of each party.

(6)  The index must follow, showing the page number where each document is reproduced and, in the case of exhibits, the page of the Black or Combined Book containing the transcript where the exhibit was marked.

(7)  If a section is bound in 2 or more volumes, each volume must contain an index of the entire section, unless otherwise directed by the Court.

(8)  This Subdivision prevails over rule 4.3 to the extent of any inconsistency.

rule 51.25: Ins 2007 (448), Sch 1 [1]. Am 2008 (63), Sch 1 [5] [6].

51.26 Division of Appeal Book (cf SCR Part 51, rules 32 and 32A)

(1)  Subject to subrule (2), the Appeal Book must be divided into the following 4 sections:

(a)  the formal section in a red cover (the Red Book),

(b)  the transcript section in a black or grey cover (the Black Book),

(c)  the document section in a blue cover (the Blue Book),

(d)  the submissions and chronology section in an orange cover (the Orange Book).

(2)  If the total number of pages in the Black and Blue Books would not exceed 300, they may be combined in one book with a black or grey cover (the Combined Book).

rule 51.26: Ins 2007 (448), Sch 1 [1].

51.27 Contents of Red Book (cf SCR Part 51, rule 33)

(1)  The Red Book must contain:

(a)  an index, and

(b)  the process and pleadings of every party as last amended and any relevant earlier versions, and

(c)  a sealed or certified copy of the judgment or order, and

(d)  the reasons for judgment or summing up below, and

(e)  the notice of appeal and any notice of cross-appeal and, if available, the notice of contention, and

(f)  the transcript of the application for leave to appeal or to cross-appeal, if applicable, and

(g)  any affidavit filed pursuant to rule 51.22, and

(h)  any notice of appearance under rule 6.11 (1).

(2)  The pages of the Red Book must be one-sided (that is, with writing on one side of the page).

rule 51.27: Ins 2007 (448), Sch 1 [1]. Am 2008 (63), Sch 1 [7].

51.28 Contents of Black Book (cf SCR Part 51, rule 34)

(1)  Subject to subrules (2) and (3), the Black Book must contain:

(a)  an index, and

(b)  the evidence of each witness, and

(c)  cross-examination, and

(d)  re-examination, and

(e)  written submissions, and

(f)  addresses (if available), and

(g)  the transcript of the hearing including, where the trial is with a jury, the return of the jury’s verdict, and

(h)  any written questions submitted to the jury.

(2)  The transcript, written submissions and addresses are to be included in the Black Book only to the extent that they are necessary for the hearing and determination of the proceedings.

(3)  If there is no such transcript:

(a)  a Black Book does not have to be prepared, and

(b)  a statement to the effect that a Black Book has not been prepared because there is no transcript is to be included in the Orange Book.

(4)  The pages of the Black Book must be two-sided (that is, with writing on both sides of the page).

rule 51.28: Ins 2007 (448), Sch 1 [1]. Am 2008 (63), Sch 1 [8].

51.29 Contents of Blue Book (cf SCR Part 51, rule 35)

(1)  Subject to subrule (5), the Blue Book must contain:

(a)  an index, and

(b)  all documents before the court below (other than those in the Red and Black Books) relevant and necessary for the hearing and determination of the proceedings.

(2)  An index of the Blue Book must:

(a)  in the case of affidavits or statements:

(i)  include reference to each annexure including the first page at which it appears in the book, and

(ii)  indicate which parts of affidavits, statements and annexures were rejected, not read, or admitted for a limited purpose, and

(b)  in the case of exhibits:

(i)  give the date of each exhibit and indicate whether it is reproduced in the Appeal Book and the page on which it is located, and

(ii)  refer to the exhibits in the order they have been lettered or numbered as exhibits, and

(iii)  refer to the pages of the Black Book where the exhibits were marked, and

(iv)  where an exhibit consists of a bundle of documents—list each document that forms part of the exhibit and the page on which it is located.

(3)  If the text of affidavits or statements is reproduced, pages or annexures not admitted in evidence must be excluded or marked to indicate their evidentiary status (as rejected, not read, or admitted for a limited purpose) unless they are relevant to a ground of appeal, cross-appeal or contention.

(4)  The following provisions apply to exhibits:

(a)  exhibits must be arranged, not in the order in which they have been lettered or numbered as exhibits, but in chronological order according to their dates or, in the case of manifestly or admittedly misdated documents, their known date,

(b)  if a document is undated, it must be placed in the sequence contended for by the appellant, but the appellant must inform the respondent of the proposed position and the respondent may require that a “date or order disputed” be inserted in the index against the document,

(c)  if the exhibits include correspondence that should be read consecutively and not interspersed among other documents, the correspondence must be arranged in chronological order and given a position together, at a convenient place, in relation to the other exhibits,

(d)  if the exhibits include medical reports:

(i)  where provided by only one doctor—they must be arranged in chronological order and given a position together, at a convenient place, in relation to the other exhibits, and

(ii)  where provided by more than one doctor—they must be grouped together by doctor in alphabetical order by surname at a convenient place in relation to the other exhibits and chronologically for each doctor,

(e)  any photographs and plans must be included unless irrelevant to the grounds of appeal, cross-appeal or contention, and if necessary reduced in size,

(f)  interrogatories, answers and affidavits of documents must only be included to the extent they were put in evidence.

(5)  If there are no such documents, a Blue Book does not have to be prepared.

(6)  The pages of the Blue Book must be two-sided (that is, with writing on both sides of the page).

rule 51.29: Ins 2007 (448), Sch 1 [1]. Am 2008 (63), Sch 1 [9].

51.30 Contents of Orange Book (cf SCR Part 51, rule 35A)

(1)  The Orange Book must contain:

(a)  the consolidated index or, if applicable, an index of its contents, and

(b)  the appellant’s submissions and chronology in their final form with references that comply with rule 51.36 (1) (b), and

(c)  the submissions and chronologies served on the appellant by other parties in their final form, and

(d)  any amended notice of appeal, notice of cross-appeal or notice of contention, in their final form, and

(e)  any statement required by rule 51.28 (3) (b).

(2)  The pages of the Orange Book must be one-sided (that is, with writing on one side of the page).

rule 51.30: Ins 2007 (448), Sch 1 [1]. Am 2008 (63), Sch 1 [10].

51.31 Disputes as to contents of Appeal Book (cf SCR Part 51, rule 36)

(1)  A party who:

(a)  objects to the inclusion of material in the Appeal Book on the ground that it is unnecessary or irrelevant, or

(b)  asserts that further material should be included,

must, within 7 days of service of the relevant part of the Appeal Book on the party, serve a written notice containing the party’s objection or assertion on any other interested party.

(2)  The party preparing the Appeal Books may, with the consent of all other parties (other than a submitting party) add pages to, or delete pages from, the Appeal Book:

(a)  at any time at least 14 days before the hearing of the appeal, or

(b)  after that time, with the leave of the Court.

(3)  If an Appeal Book is amended in accordance with subrule (2), the index to the relevant section and the consolidated index are to be amended accordingly.

(4)  A party who asserts that additional material should be included in the Appeal Book must, unless all other parties who have not submitted have agreed to the inclusion, lodge 4 copies of the additional material and serve 3 copies at least 7 days before the hearing on each other interested party.

(5)  The additional material referred to in subrule (4) must be indexed and, if it consists of more than 30 pages, bound as a supplementary Black Book or Blue Book (as the case requires).

rules 51.31–51.33: Ins 2007 (448), Sch 1 [1].

51.32 Filing, lodgment and service of sections of Appeal Book (cf SCR Part 51, rules 37 and 37AA)

(1)  The appellant must:

(a)  within 6 weeks of filing the notice of appeal:

(i)  file a copy of the Red Book, and

(ii)  serve 3 copies on each other interested party, and

(b)  not less than 4 weeks before the date fixed for hearing of the appeal, lodge a further 3 copies of the Red Book with the Registrar.

(2)  The appellant must, not less than 10 weeks before the date fixed for the hearing of the appeal, serve on each interested party 3 copies of each of the Blue and Black Books or, where relevant, the Combined Book.

(3)  The appellant must, not less than 4 weeks before the date fixed for the hearing of the appeal:

(a)  file 4 copies of:

(i)  each of the Black and Blue Books or, if relevant, the Combined Book, and

(ii)  the Orange Book, and

(b)  serve on each interested party 3 copies of the Orange Book.

rules 51.31–51.33: Ins 2007 (448), Sch 1 [1].

51.33 Overriding obligation to file Orange Book (cf SCR Part 51, rule 37A)

(1)  The appellant must ensure that the Orange Book is filed in accordance with rule 51.32 (3) and, where necessary, must arrange to have the timetable prescribed by this Part varied by consent, or by direction of the Court, in order to achieve this overriding obligation.

(2)  All other parties must cooperate with the appellant to enable the appellant to comply with subrule (1).

(3)  If any default by another party prevents, or is likely to prevent, compliance with subrule (1), the appellant must apply promptly for a directions hearing.

rules 51.31–51.33: Ins 2007 (448), Sch 1 [1].

Subdivision 4 Written submissions and chronologies

pt 51, div 5, sdiv 4: Ins 2007 (448), Sch 1 [1].

51.34 Filing written submissions and chronologies (cf SCR Part 51, rules 44 and 44A)

(1)  In any proceedings in which a notice of appeal is filed:

(a)  each interested party must, unless otherwise directed, file written submissions in accordance with rule 51.36, and

(b)  the appellant must file a chronology in accordance with rule 51.35.

(2)  A respondent may file an alternative or supplementary chronology.

(3)  A party may file one set of amended submissions:

(a)  if the amendment is of a minor or formal nature or inserts Appeal Book references—without leave, or

(b)  otherwise—by leave of the Court or with the consent of all other interested parties.

rules 51.34, 51.35: Ins 2007 (448), Sch 1 [1].

51.35 Appellant’s chronology (cf SCR Part 51, rule 45)

The appellant’s chronology must comprise a list of the principal events leading up to the litigation and, where appropriate, events during the litigation, numbered consecutively with the date, a short description of each event, and references to the Appeal Book.

rules 51.34, 51.35: Ins 2007 (448), Sch 1 [1].

51.36 Content of written submissions (cf SCR Part 51, rules 46 and 46A)

(1)  Written submissions filed in an appeal must:

(a)  be divided into paragraphs numbered consecutively, and

(b)  so far as practicable, refer to matter in the Appeal Book by section name, volume number (if any), page number and letter, and not extract that matter, and

(c)  so far as practicable, not extract matter in a judicial authority, and

(d)  be signed by the barrister or solicitor who prepares it or, where the party is not represented by a barrister or solicitor, by the party, and

(e)  have the following typed or printed in a neat and legible manner under the signature referred to in paragraph (d):

(i)  the name of the signatory,

(ii)  a telephone number at which the signatory can be contacted,

(iii)  if available, the signatory’s facsimile number,

(iv)  if available, the signatory’s email address, and

(f)  not exceed 20 pages (not counting the pages of any statement included in the submissions for the purposes of subrule (2)).

(2)  Submissions raising substantial challenges to findings of fact must include a statement in narrative form (not exceeding 20 pages) setting out:

(a)  the findings challenged, and

(b)  the findings contended for and the reasons why the Court should substitute those findings, and

(c)  supporting references to the transcript and other evidence.

(3)  If damages for death or bodily injury are in issue:

(a)  the appellant’s written submissions must state:

(i)  the manner in which the damages were assessed, or in the case of trial by jury, may be supposed to have been assessed, and

(ii)  the heads of damages that are in issue in the appeal, and

(iii)  briefly but specifically, the basis of the challenge, and

(iv)  where applicable—the alternative assessment contended for, and

(b)  the respondent’s written submissions must state:

(i)  the extent to which the assessment will be challenged or supported by cross-appeal or contention, and

(ii)  any alternative assessment sought, and briefly but specifically, the basis for it.

(4)  The written submissions must address:

(a)  any claim for an order for reinstatement or restitution and the form of the order sought, and

(b)  where restitution is sought with interest that is at a rate other than the relevant rate set out in rule 36.7 (1)—the rate of interest that should be applied.

rule 51.36: Ins 2007 (448), Sch 1 [1]. Am 2010 (172), Sch 1 [11].

51.37 Time for filing of written submissions and chronologies (cf SCR Part 51, rules 47 and 47A)

(1)  Written submissions must be filed:

(a)  by the appellant—within 6 weeks of the notice of appeal being filed, and

(b)  by the respondent—within 10 weeks of the notice of appeal being filed.

(2)  Chronologies and amended written submissions must be filed:

(a)  by the appellant—not less than 10 weeks before the hearing date, and

(b)  by the respondent—not less than 8 weeks before the hearing date.

(3)  Compliance with subrule (1) or (2) does not dispense with compliance with rule 51.30 (b) or (c).

Note—

See also rule 51.33, which contains an overriding obligation to ensure that the Orange Book is filed on time.

rules 51.37, 51.38: Ins 2007 (448), Sch 1 [1].

51.38 Service of written submissions and chronologies (cf SCR Part 51, rule 48)

A party who files a chronology or written submissions must, on the day of filing, serve 3 copies on every other interested party.

rules 51.37, 51.38: Ins 2007 (448), Sch 1 [1].

Subdivision 5 Use of material from leave applications

pt 51, div 5, sdiv 5 (rule 51.39): Ins 2007 (448), Sch 1 [1].

51.39 Court may order use of White Folder instead of preparation of Appeal Book and submissions

The Court may:

(a)  order that a White Folder be treated as an Appeal Book or written submissions (or both), and

(b)  make such other ancillary orders as the Court thinks fit.

pt 51, div 5, sdiv 5 (rule 51.39): Ins 2007 (448), Sch 1 [1].

Subdivision 6 Notices of contention and objections to competency

pt 51, div 5, sdiv 6: Ins 2007 (448), Sch 1 [1].

51.40 Notices of contention (cf SCR Part 51, rule 21)

(1)  A respondent who wishes to contend that the decision below should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of the orders of the court below:

(a)  need not file a notice of cross-appeal, and

(b)  must, within 28 days after service on the respondent of the notice of appeal, file and serve on each interested party notice of that contention stating briefly, but specifically, the grounds relied on.

(2)  A respondent who files a notice of contention in proceedings is taken to have entered an appearance in the proceedings.

rule 51.40: Ins 2007 (448), Sch 1 [1]. Am 2007 (579), Sch 3 [4].

51.41 Objections to competency of appeal (cf SCR Part 51, rule 25)

(1)  A respondent who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 28 days after service on the respondent of the notice of appeal, apply to the Court for an order dismissing the appeal as incompetent.

(2)  If the respondent fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent:

(a)  the respondent is not entitled to costs of the appeal unless the Court otherwise orders, and

(b)  the Court may order the respondent to pay the appellant any costs of the appeal proving useless or unnecessary.

rule 51.41: Ins 2007 (448), Sch 1 [1].

Division 6 Effect of applications for leave and appeals on court below

pt 51, div 6: Ins 2007 (448), Sch 1 [1].

51.42 Copies of notices of intention to appeal, leave applications and summonses to be filed or lodged with court below (cf SCR Part 51, rule 14)

A person who files and serves a notice of intention to appeal or relevant originating process must:

(a)  where it relates to a decision in a Division of the Supreme Court—file a copy of it in the registry of the Division at the same time, or

(b)  in any other case:

(i)  file a copy of it in the registry or office of the court below, or

(ii)  lodge a copy of it with an officer of the court below concerned with its records or process.

pt 51, div 7 (rules 51.42–51.45): Ins 2007 (448), Sch 1 [1].

51.43 Court below to retain exhibits if its decision is appealable (cf SCR Part 51, rule 29)

(1)  If an appeal from a decision lies to the Court, by leave or otherwise, the officer of the court below who has custody of the exhibits in the proceedings must, unless the court below orders otherwise, retain them for:

(a)  28 days after the material date, and

(b)  if a notice of intention to appeal is filed or lodged—a further 3 months.

(2)  On the filing or lodgment under rule 51.42 of a copy of a notice of appeal, the proper officer of the court below must make out and certify a list of the exhibits.

(3)  If an exhibit is not available, the officer certifying must include such information as the officer can to enable the Registrar to obtain the exhibit.

pt 51, div 7 (rules 51.42–51.45): Ins 2007 (448), Sch 1 [1].

51.44 Appeal proceedings do not operate as stay unless Court or court below directs (cf SCR Part 51, rule 15)

(1)  Subject to the filing of a relevant originating process, the Court may order that the decision below or the proceedings under the decision be stayed.

(2)  The filing of a relevant originating process does not:

(a)  operate as a stay of proceedings under the decision below, or

(b)  invalidate any intermediate act or proceedings.

pt 51, div 7 (rules 51.42–51.45): Ins 2007 (448), Sch 1 [1].

Division 7 Proceedings other than appeal proceedings

pt 51, div 7 (rules 51.42–51.45): Ins 2007 (448), Sch 1 [1].

51.45 Summons and written submissions to be filed (cf SCR Part 51, rule 51)

(1)  Proceedings in the Court (other than appeal proceedings) must be commenced by summons.

(2)  An applicant in any such proceedings must file written submissions with the summons in accordance with subrule (3).

(3)  The written submissions must:

(a)  not exceed 20 pages, and

(b)  state the jurisdictional basis for the proceedings (whether legislative or at general law), and

(c)  state the grounds on which relief is sought and, briefly, the applicant’s argument in support of those grounds, and

(d)  be signed by the barrister or solicitor who prepares the submissions or, where the party is not represented by a barrister or solicitor, by the party, and

(e)  have the following typed or printed in a neat and legible manner under the signature referred to in paragraph (d):

(i)  the name of the signatory,

(ii)  a telephone number at which the signatory can be contacted,

(iii)  if available, the signatory’s facsimile number,

(iv)  if available, the signatory’s email address.

pt 51, div 7 (rules 51.42–51.45): Ins 2007 (448), Sch 1 [1].

Division 8 Miscellaneous

Subdivision 1 Offers of compromise

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

51.46 Interpretation

In this Subdivision:

initiating party means an applicant, appellant or cross-appellant (as the case may be).

opposite party means a prospective respondent, respondent or cross-respondent (as the case may be).

party means an initiating party or opposite party.

proceedings in the Court includes a notice of intention to appeal that has been filed even if proceedings in the Court have not been formally commenced.

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

51.47 Making of offers of compromise

(1)  In any proceedings in the Court, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, in whole or in part, on specified terms.

(2)  The provisions of Division 4 (Compromise) of Part 20 apply to any offer of compromise made under subrule (1), subject to the following modifications:

(a)  a reference to a court is a reference to the Court,

(b)  a reference to proceedings is a reference to proceedings in the Court,

(c)  a reference to a plaintiff is a reference to an initiating party in the Court,

(d)  a reference to a defendant is a reference to an opposite party in the Court,

(e)  a reference to a trial is a reference to a hearing in the Court that is not limited to questions of practice or procedure,

(f)  a reference to a verdict for the defendant is a reference to a judgment for the opposite party,

(g)  a reference to the period for acceptance for an offer is a reference to the period until:

(i)  the expiration of the time limited by the offer or otherwise 28 days, or

(ii)  the time when the Court begins to give its decision or reasons for decision, whichever is the earlier, on a judgment (except an interlocutory judgment),

whichever first occurs,

(h)  such other modifications as are necessary.

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

51.48 Application of Division 3 of Part 42 to offers of compromise made in proceedings in Court

(1)  If an offer of compromise is made under rule 51.47, Division 3 of Part 42 applies, subject to subrule (2), rule 51.49 and the following modifications:

(a)  rule 42.13 is to be read as if it provided that the Division applies where an offer of compromise (the offer concerned) is made as provided by rule 51.47 with respect to a plaintiff’s claim (the claim concerned),

(b)  a reference to a court is a reference to the Court,

(c)  a reference to proceedings is a reference to proceedings in the Court,

(d)  in the case of appeal proceedings:

(i)  a reference to the plaintiff is a reference to the party who was a plaintiff in the court below, and

(ii)  a reference to the defendant is a reference to the party who was a defendant in the court below,

(e)  in the case of proceedings in the Court other than appeal proceedings:

(i)  a reference to the plaintiff is a reference to the applicant, and

(ii)  a reference to the defendant is a reference to the respondent,

(f)  a reference to a trial is a reference to a hearing in the Court that is not limited to questions of practice or procedure,

(g)  a reference to a verdict for the defendant is a reference to a judgment for the defendant,

(h)  such other modifications as are necessary.

(2)  If the judgment does not permit the Court to determine whether a provision of Division 3 of Part 42 applies to an offer of compromise under rule 51.47 (for example, because the Court has ordered a retrial or remittal for assessment of damages):

(a)  an order for costs must disregard the offer, and

(b)  where the Court has ordered a retrial or remittal for assessment of damages:

(i)  if the offer was made by the plaintiff below—the court below may make a further or different order under rule 42.14 with respect to the plaintiff’s costs in the Court, or

(ii)  if the offer was made by the defendant below—the Court may stay its order with respect to costs from the relevant date under rule 42.15 (2) (b) or rule 42.15A (2) (b) (as appropriate) and the court below may make a further or different order, or lift the stay, as appropriate.

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

51.49 Relevance of offers of compromise made in proceedings in court below

The Court may have regard to any offer of compromise made (whether under these rules or otherwise) in the court below.

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

Subdivision 2 Powers of Court

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

51.50 Security for costs (cf SCR Part 51, rule 16)

(1)  In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal.

(2)  Subject to subrules (1) and (3), no security for costs of an appeal is to be required.

(3)  Subrules (1) and (2) do not affect the powers of the Court under rule 42.21 (which relates to security for costs).

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

51.51 Additional evidence (cf SCR Part 51, rule 19)

(1)  This rule applies to an application to receive additional evidence.

(2)  The application must be made by motion returnable on the return day or, with leave of the Court, on a later day.

Note—

Part 18 makes provision with respect to motions and notices of motion.

(3)  The grounds must be stated in an affidavit.

(4)  Evidence necessary to establish the grounds of the application, and the evidence the applicant wants the Court to receive, must be given by affidavit.

(5)  The evidence of any party in response must be given by affidavit filed within the time directed by the Court.

(6)  A party must, not later than the time limited for filing an affidavit under this rule:

(a)  file as many copies of the affidavit as the Court may direct, and

(b)  serve 3 copies of the affidavit on each other interested party.

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

51.52 Powers of Court on appeal not limited by certain procedural matters (cf SCR Part 51, rule 22)

(1)  The Court may exercise its powers under the Civil Procedure Act 2005, the Supreme Court Act 1970 and these rules even if:

(a)  there is no appeal from some part of the decision below, or

(b)  a party to the proceedings below has not appealed, or

(c)  a ground for allowing or dismissing the appeal or varying the decision is not included in any notice of appeal, notice of cross-appeal or notice of contention, or

(d)  there has been no appeal from some other decision in the proceedings.

(2)  If a person was not a party to the proceedings in which the decision below was given, but is served with a notice of appeal pursuant to a direction of the Court, the Court may give such decision as might have been given in the court below if the person served had been a party below.

(3)  The Court may, on terms, make any order to ensure the determination on the merits of the real question in controversy.

(4)  The Court may make any order that it might make on an application for a new trial or for the setting aside of a verdict or judgment.

(5)  This rule applies subject to any Act.

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

51.53 Circumstances in which Court may order new trial (cf SCR Part 51, rule 23)

(1)  The Court must not order a new trial on any of the following grounds:

(a)  misdirection, non-direction or other error of law,

(b)  improper admission or rejection of evidence,

(c)  that the verdict of the jury below was not taken on a question that the trial judge was not asked to leave to the jury,

(d)  on any other ground,

unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.

(2)  The Court may order a new trial on any question without interfering with the decision on any other question.

(3)  If it appears to the Court that some ground for a new trial affects part only of the matter in controversy, or one or some only of the parties, the Court may order a new trial as to that part only, or as to that party or those parties only.

(4)  If the Court makes an order under subrule (2) or (3), it may give such judgment or make such order as the nature of the case requires for the disposal of the remainder of the appeal.

(5)  If the Court orders a new trial, the Court may:

(a)  impose conditions on any party for the purposes of the new trial, and

(b)  direct admissions to be made by any party for the purpose of the new trial, and

(c)  order that the testimony of any witness examined at the former trial may be read from the transcript, instead of the witness being again examined.

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

51.54 Reinstatement and restitution (cf SCR Part 51, rule 26)

If any step has been taken for the enforcement of a judgment or order that the Court varies or sets aside, the Court may make such orders for reinstatement or restitution as it thinks fit.

Note—

Rule 51.19 provides for how claims for an order for reinstatement or restitution are to be made in appeals and cross-appeals.

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

51.55 Short reasons for decision (cf SCR Part 51, rule 59)

The Court may, when dismissing an appeal, exercise its power under section 45 (4) of the Supreme Court Act 1970 to give reasons for its decision in short form.

pt 51, div 8, sdivs 1, 2 (rules 51.46–51.55): Ins 2007 (448), Sch 1 [1].

Subdivision 3 Discontinuances

pt 51, div 8, sdiv 3: Ins 2007 (448), Sch 1 [1].

51.56 Discontinuance of proceedings in Court (cf SCR Part 51, rules 4A and 6 (5) and (6))

(1)  The initiating party in any appeal proceedings may discontinue the proceedings by filing a notice of discontinuance and serving it on each respondent who has been served with the relevant notice of appeal or summons seeking leave to appeal.

(2)  The discontinuance of an appeal does not affect any cross-appeal.

(3)  An application for leave to cross-appeal to the Court is taken to be discontinued when an application for leave to appeal to the Court is discontinued, but only if the party who made the application for leave to cross-appeal has not been served with a notice of appeal in the proceedings.

(4)  An application for leave to cross-appeal that is taken to be discontinued may be reinstated on application made within 21 days.

(5)  An application for leave to cross-appeal to the Court is not affected by the discontinuance of any application for leave to appeal to the Court if a notice of appeal has been filed in the proceedings and served on the party who made the application for leave to cross-appeal.

(6)  This rule does not limit the operation of rule 12.1 in relation to proceedings in the Court.

Note—

Rules 12.1, 12.3, 12.4 and 42.19 apply, with necessary modifications, in relation to proceedings in the Court. See rule 51.1 (3) and (4).

(7)  The discontinuance of appeal proceedings does not require the consent of any respondent or the leave of the Court.

(8)  Rule 42.19 applies to the discontinuance of appeal proceedings under this rule in the same way as it applies to the discontinuance of proceedings under rule 12.1.

rule 51.56: Ins 2007 (448), Sch 1 [1]. Am 2008 (338), Sch 1 [20] [21].

Subdivision 4 Other

pt 51, div 8, sdiv 4: Ins 2007 (448), Sch 1 [1].

51.57 Hearing in fixed vacation (cf SCR Part 51, rule 52)

(1)  An application for an order that an appeal or other proceedings be heard during the fixed vacation must, unless the Court otherwise orders, be accompanied by:

(a)  an affidavit showing the grounds on which the application is based, and

(b)  a draft order.

Note—

Rule 18.1 requires an interlocutory or other application to a court to be made by motion unless the rules otherwise provide.

(2)  The application may be dealt with by the Court in the absence of the public and without the attendance of any person.

rules 51.57–51.59: Ins 2007 (448), Sch 1 [1].

51.58 Review of order of Judge of Appeal (cf SCR Part 51, rule 56)

An application to the Court for the variation or discharge of an order of a Judge of Appeal must be made on notice of motion filed:

(a)  within 14 days after the date on which the order is made, or

(b)  within such extended time as the Court may fix.

rules 51.57–51.59: Ins 2007 (448), Sch 1 [1].

51.59 Review of decisions of Registrar (cf SCR Part 61, rule 4)

(1)  A Judge of Appeal may exercise the powers of the Court under Part 49 to review a decision of the Registrar.

(2)  This rule does not limit the powers of the Court to review decisions of the Registrar under Part 49.

rules 51.57–51.59: Ins 2007 (448), Sch 1 [1].

51.60 Application for expedited hearing

(1)  A party may apply for the hearing of proceedings in the Court to be expedited.

(2)  An interested party may file a notice of non-objection to the hearing of the proceedings being expedited.

(3)  If notices of non-objection are filed by each of the interested parties, the application may be decided in the absence of the public and the parties.

(4)  Reasons for a decision under subrule (3) need not be given.

(5)  This rule does not limit any other power of the Court to order that the hearing of proceedings be expedited.

rules 51.60, 51.61: Ins 2007 (579), Sch 3 [5].

51.61 Affidavits in support of orders sought by notice of motion

(1)  Unless the Court orders otherwise:

(a)  a party that files a notice of motion must also file an affidavit setting out the evidence that the party relies on in support of the orders sought by the notice, and

(b)  a party that opposes an order sought by a notice of motion must file an affidavit setting out the evidence that the party relies on in opposition to the order.

(2)  An affidavit referred to in subrule (1) (b) must be filed as soon as practicable and, in any case, before the hearing date listed in the notice of motion that seeks the orders opposed.

rules 51.60, 51.61: Ins 2007 (579), Sch 3 [5].

Part 52 Taking evidence for foreign and Australian courts and tribunals

pt 52: Ins 2007 (501), Sch 1 [7].

52.1 Procedure (cf SCR Part 58, rule 1)

(1)  Proceedings for an order under section 33 of the Evidence on Commission Act 1995 in relation to a matter pending before a requesting court may be commenced in the Supreme Court:

(a)  by a person nominated for that purpose by the requesting court, or

(b)  if no person is so nominated, by the Attorney General.

(2)  In proceedings for such an order, no person is required to be joined as a defendant.

(3)  If proceedings for such an order have been commenced in relation to a matter pending before a requesting court, any other application for such an order in relation to the same matter is to be made by notice of motion in the proceedings.

(4)  Rules 52.2–52.5 have effect unless the Supreme Court otherwise orders.

rules 52.1–52.4: Ins 2007 (501), Sch 1 [7].

52.2 Application of other rules regarding the taking of evidence (cf SCR Part 58, rule 2)

Subject to this Part, rules 24.7–24.16 apply to an examination held pursuant to an order under this Part:

(a)  as if the matter pending before the requesting court were proceedings in the Supreme Court, and

(b)  as if the order had been made under rule 24.3 in proceedings in the Supreme Court, and

(c)  if a Judge, associate Judge or registrar is appointed under section 33 of the Evidence on Commission Act 1995, as if an order had been made under rule 24.3 for the examination of a person on oath before a Judge, associate Judge or registrar.

rules 52.1–52.4: Ins 2007 (501), Sch 1 [7].

52.3 Attendance of applicant (cf SCR Part 58, rule 3)

The person commencing proceedings under this Part may attend and take part in the examination.

rules 52.1–52.4: Ins 2007 (501), Sch 1 [7].

52.4 Transcript of evidence and exhibits (cf SCR Part 58, rule 4)

(1)  The provisions of rule 24.14 (4) and (5) do not apply to an examination under this Part.

(2)  Subject to rule 52.6, the examiner must send the transcript of evidence and any document which constitutes a recording under rule 24.13 (which relates to videotape, etc) to the principal registrar of the Supreme Court.

(3)  An examiner who receives an exhibit on production by any person must, at the conclusion of the examination, return the exhibit to the person producing it unless that person consents to the retention of the exhibit.

(4)  If the examiner retains the exhibit, he or she must send it to the principal registrar of the Supreme Court together with the transcript of evidence.

rules 52.1–52.4: Ins 2007 (501), Sch 1 [7].

52.5 Certificate (cf SCR Part 58, rule 5)

On receipt of a transcript of evidence taken under this Part, a registrar of the Supreme Court:

(a)  must issue a certificate, sealed with the seal of the Supreme Court, annexing and identifying:

(i)  the request, and

(ii)  the order of the Court for examination, and

(iii)  the transcript of evidence, and

(iv)  any document that constitutes a recording under rule 24.13, and

(v)  any exhibits received from the examiner, and

(b)  must send the certificate and annexures to the Attorney General or, if the request was sent to the Supreme Court by some other person pursuant to a convention, to that other person.

rule 52.5: Ins 2007 (501), Sch 1 [7]. Am 2009 (88), Sch 1 [12] [13].

52.6 Privilege of witness (cf SCR Part 58, rule 6)

(1)  This rule applies if a claim by a witness to be exempt from giving any evidence on the ground specified in section 34 (1) (b) of the Evidence on Commission Act 1995 is not supported or conceded as mentioned in section 34 (2) of that Act.

(2)  The witness may be required to give the evidence to which the claim relates:

(a)  by the examiner, or

(b)  if the examiner does not so require, by the Supreme Court on the application of the person who obtained the order under section 33 of the Evidence on Commission Act 1995.

(3)  An application referred to in subrule (2) (b) need not be served on any person unless the Supreme Court otherwise orders.

(4)  The following provisions apply if the evidence is taken pursuant to such a requirement:

(a)  the evidence must be recorded in a transcript (the disputed transcript) that is separate to the transcript in which the rest of the witness’s evidence is recorded,

(b)  the transcript of evidence that is sent to the principal registrar of the Supreme Court must be accompanied by a statement, signed by the examiner, setting out the claim and the ground on which it was made,

(c)  on receipt of the statement, the principal registrar of the Supreme Court:

(i)  must retain the disputed transcript, and

(ii)  must send to the requesting court, together with the documents mentioned in rule 52.4, both the statement and a request to determine the claim,

(d)  on receiving notice of the requesting court’s determination of the claim, the principal registrar of the Supreme Court:

(i)  if the claim is rejected, must send the disputed transcript to the requesting court, or

(ii)  if the claim is upheld, must send the disputed transcript to the witness,

and, in either case, must cause notice of the determination to be given both to the witness and to the person who obtained the order under section 33 of the Evidence on Commission Act 1995.

rule 52.6: Ins 2007 (501), Sch 1 [7].

Part 53 Matters arising under the Foreign Judgments Act 1991 of the Commonwealth

pt 53 (rules 53.1–53.8): Ins 2007 (501), Sch 1 [7].

53.1 Definitions (cf SCR Part 59A, rule 1)

In this Part, judgment, judgment creditor, judgment debtor and money judgment have the same meanings as they have in the Foreign Judgments Act 1991 of the Commonwealth.

pt 53 (rules 53.1–53.8): Ins 2007 (501), Sch 1 [7].

53.2 Commencement of proceedings (cf SCR Part 59A, rule 2)

(1)  Proceedings for registration of a judgment under Part 2 of the Foreign Judgments Act 1991 of the Commonwealth are to be commenced in the Supreme Court.

(2)  In any such proceedings, the judgment creditor is to be the plaintiff and the judgment debtor is to be the defendant.

(3)  Unless the Supreme Court otherwise orders, the judgment creditor may proceed without service of the summons on the judgment debtor.

(4)  If the judgment creditor adds to the summons a request that the application be granted under this rule, the Supreme Court may make the order in the absence of the public and without any attendance by or on behalf of the judgment creditor.

pt 53 (rules 53.1–53.8): Ins 2007 (501), Sch 1 [7].

53.3 Evidence (cf SCR Part 59A, rule 3)

(1)  The evidence in support of an application for registration of a judgment must include the following:

(a)  the judgment or a verified or certified or otherwise duly authenticated copy of the judgment,

(b)  if the judgment is not in English, a translation of the judgment into English, certified by a notary public or authenticated by evidence,

(c)  evidence showing which, if some only, provisions of the judgment are the subject of the application,

(d)  if it is a money judgment, evidence showing the amount originally payable under the judgment,

(e)  evidence showing that the Supreme Court is the appropriate court under section 6 (1) of the Foreign Judgments Act 1991 of the Commonwealth,

(f)  evidence showing the name and trade or business, and the usual or last known residential or business addresses, of the judgment creditor and judgment debtor,

(g)  evidence showing that the judgment creditor is entitled to enforce the judgment,

(h)  evidence showing:

(i)  that, at the date of the application, the judgment can be enforced by execution in the country of the original court, and

(ii)  that, if the judgment were registered in the Supreme Court, the registration would not be liable to be set aside under section 7 of the Foreign Judgments Act 1991 of the Commonwealth,

(i)  if interest is payable by the law of the country of the original court on any money which is payable under the judgment, evidence showing:

(i)  the rate of interest, and

(ii)  the amount of interest which has become due under the judgment up to the time of application for registration, and

(iii)  the daily amount of interest which, subject to any future payment on account of the judgment, will accrue after the date of the application,

(j)  evidence showing the extent to which the judgment is unsatisfied,

(k)  such other evidence as may be required having regard to any regulations made under the Foreign Judgments Act 1991 of the Commonwealth.

(2)  The evidence referred to in subrule (1) must relate to those provisions of the judgment that are the subject of the application.

(3)  The evidence referred to in subrule (1) (g)–(j) may be evidence to the best of the information or belief of the deponent or witness giving the evidence.

(4)  All amounts of money referred to in this rule must be expressed:

(a)  in the currency in which the judgment is expressed, and

(b)  if the judgment creditor has not made a statement under section 6 (11) (a) of the Foreign Judgments Act 1991 of the Commonwealth, as an equivalent amount in Australian currency calculated in accordance with section 6 (11) (b), (11A) and (11B) of that Act.

pt 53 (rules 53.1–53.8): Ins 2007 (501), Sch 1 [7].

53.4 Security for costs (cf SCR Part 59A, rule 4)

For the purposes of proceedings under the Foreign Judgments Act 1991 of the Commonwealth, the Supreme Court may make an order under rule 42.21 otherwise than on the application of the judgment debtor.

pt 53 (rules 53.1–53.8): Ins 2007 (501), Sch 1 [7].

53.5 Order for registration (cf SCR Part 59A, rule 5)

(1)  The time fixed under section 6 (4) of the Foreign Judgments Act 1991 of the Commonwealth must not, except in exceptional circumstances, be less than 14 days after service on the judgment debtor of notice of the registration.

(2)  An order for registration of a judgment must specify the extent to which the judgment may be enforced.

pt 53 (rules 53.1–53.8): Ins 2007 (501), Sch 1 [7].

53.6 Notice of registration (cf SCR Part 59A, rule 7)

(1)  Notice of registration of a judgment must be served on the judgment debtor.

(2)  Service of the notice must be personal unless:

(a)  the judgment debtor has entered an appearance or is in default of appearance, or

(b)  the Supreme Court otherwise orders.

(3)  The notice of registration must state:

(a)  particulars of the judgment and of the order for registration, and

(b)  the right of the judgment debtor to apply for an order:

(i)  setting aside the registration, and

(ii)  staying enforcement of the judgment, and

(c)  the time within which the judgment debtor may apply for an order setting aside the registration.

(4)  If the summons has not been served on the judgment debtor, the notice of registration must also state the address for service of the judgment creditor.

pt 53 (rules 53.1–53.8): Ins 2007 (501), Sch 1 [7].

53.7 Setting aside registration (cf SCR Part 59A, rule 8)

(1)  Subject to subrule (2), the Supreme Court may, on the application of the judgment debtor, make an order setting aside the registration.

(2)  An application for such an order must be made within the time fixed under section 6 (4) of the Foreign Judgments Act 1991 of the Commonwealth or within such further period as may be allowed under section 6 (5) of that Act.

pt 53 (rules 53.1–53.8): Ins 2007 (501), Sch 1 [7].

53.8 Enforcement (cf SCR Part 59A, rule 9)

(1)  Subject to this rule, on registration of a judgment, the judgment may, to the extent specified in the order for registration, be enforced as a judgment of the Supreme Court in the proceedings in which it is registered.

(2)  The judgment creditor must not take any step for enforcement of the judgment until an affidavit of service of the notice of registration is filed or the Supreme Court is otherwise satisfied that the requirements of these rules as to service of the notice of registration have been complied with.

(3)  Except by leave of the Supreme Court, the judgment creditor may not take any step for enforcement of the judgment:

(a)  before the expiry of the time within which the judgment debtor may apply for an order setting aside registration, or

(b)  if within that time the judgment debtor makes such an application, before the application is disposed of.

pt 53 (rules 53.1–53.8): Ins 2007 (501), Sch 1 [7].

Part 54 Administration of estates and execution of trusts

pt 54 (rules 54.1–54.8): Ins 2007 (501), Sch 1 [7].

54.1 Definitions (cf SCR Part 68, rule 1)

In this Part:

administration proceedings means proceedings for the administration of an estate, or for the execution of a trust, under the direction of the Supreme Court.

ancillary proceedings means proceedings brought pursuant to rule 54.3.

estate means a deceased person’s estate.

pt 54 (rules 54.1–54.8): Ins 2007 (501), Sch 1 [7].

54.2 Application of Part (cf SCR Part 68, rule 3)

This Part applies to both administration proceedings and ancillary proceedings.

pt 54 (rules 54.1–54.8): Ins 2007 (501), Sch 1 [7].

54.3 Relief without general administration (cf SCR Part 68, rule 2)

(1)  Proceedings may be brought for any relief which could be granted in administration proceedings.

(2)  Proceedings may be brought for the determination of any question which could be determined in administration proceedings, including:

(a)  any question arising in the administration of an estate or in the execution of a trust,

(b)  any question as to the composition of any class of persons:

(i)  having a claim against an estate, or

(ii)  having a beneficial interest in an estate, or

(iii)  having a beneficial interest in property subject to a trust,

(c)  any question as to the rights or interests of a person who claims:

(i)  to be a creditor of an estate, or

(ii)  to be entitled under the will, or on the intestacy, of a deceased person, or

(iii)  to be beneficially entitled under a trust.

(3)  Proceedings may be brought for an order directing any executor, administrator or trustee:

(a)  to furnish accounts, or

(b)  to verify accounts, or

(c)  to pay funds of the estate or trust into court, or

(d)  to do or abstain from doing any act.

(4)  Proceedings may be brought for:

(a)  an order approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee, or

(b)  directing any act to be done in the administration of an estate that the Supreme Court could order to be done if the estate were being administered under the direction of the Court, or

(c)  directing any act to be done in the execution of a trust that the Supreme Court could order to be done if the trust were being executed under the direction of the Court.

(5)  Subrules (1)–(4) do not limit the operation of each other.

(6)  In any proceedings brought pursuant to this rule, a claim need not be made for the administration of the estate, or the execution of the trust, under the direction of the Supreme Court.

pt 54 (rules 54.1–54.8): Ins 2007 (501), Sch 1 [7].

54.4 Claim under judgment (cf SCR Part 68, rule 6)

If, in the taking of an account of debts or liabilities under an order in proceedings relating to an estate or trust, a person who is not a party to the proceedings makes a claim:

(a)  no party (other than an executor or administrator of the estate or a trustee under the trust) is entitled to appear in relation to the claim except by leave of the Supreme Court, and

(b)  the Supreme Court may direct or allow any party to appear, either in addition to or in substitution for the executors, administrators or trustees.

pt 54 (rules 54.1–54.8): Ins 2007 (501), Sch 1 [7].

54.5 Relief that may be granted (cf SCR Part 68, rule 7)

(1)  The Supreme Court may make any certificate or order and grant any relief to which the plaintiff is entitled by reason of a defendant’s breach of trust, wilful default or other misconduct.

(2)  Subrule (1) does not affect the power of the Supreme Court under rule 6.6.

pt 54 (rules 54.1–54.8): Ins 2007 (501), Sch 1 [7].

54.6 Supreme Court not required to order general administration (cf SCR Part 68, rule 8 (1))

The Supreme Court need not make an order for the administration of an estate, or for the execution of a trust, under the direction of the Court unless the order is necessary for the determination of the questions arising between the parties.

pt 54 (rules 54.1–54.8): Ins 2007 (501), Sch 1 [7].

54.7 Supreme Court may order general administration in certain circumstances (cf SCR Part 68, rule 8 (2))

(1)  This rule applies if it appears to the Supreme Court that an order for the administration of an estate or the execution of a trust under the direction of the Court is necessary:

(a)  to prevent proceedings by any person who claims:

(i)  to be a creditor of the estate, or

(ii)  to be entitled under the will, or on the intestacy, of the deceased, or

(iii)  to be beneficially entitled under the trust, or

(b)  to protect the interests of any person who is, or who may be, beneficially entitled under the trust.

(2)  In these circumstances, the Court:

(a)  may make such an order, and

(b)  may further order that no steps are to be taken under the order, or under any account or inquiry directed, without the leave of the Court.

pt 54 (rules 54.1–54.8): Ins 2007 (501), Sch 1 [7].

54.8 Conduct of sale (cf SCR Part 68, rule 9)

If the Supreme Court makes an order:

(a)  for the sale of property comprised in an estate, or

(b)  for the sale of trust property,

then, unless the Court otherwise orders, the executors, administrators or trustees, as the case requires, are to have the conduct of the sale.

pt 54 (rules 54.1–54.8): Ins 2007 (501), Sch 1 [7].

Part 55 Matters arising under the Trustee Act 1925

pt 55: Ins 2007 (501), Sch 1 [7].

Division 1 Judicial advice

pt 55, div 1: Ins 2007 (501), Sch 1 [7].

55.1 Statement (cf SCR Part 70, rule 3)

(1)  A statement under section 63 of the Trustee Act 1925:

(a)  must be divided into consecutively numbered paragraphs, and

(b)  must state the facts concisely, and

(c)  must state the question for opinion, advice or direction.

(2)  Despite rule 6.12 (2), the originating process in proceedings under section 63 of the Trustee Act 1925 need not state the question for opinion, advice or direction.

pt 55, div 2 (rules 55.1–55.7): Ins 2007 (501), Sch 1 [7].

55.2 Order (cf SCR Part 70, rule 4)

An opinion, advice or direction under section 63 of the Trustee Act 1925 must be given by order.

pt 55, div 2 (rules 55.1–55.7): Ins 2007 (501), Sch 1 [7].

55.3 Application by beneficiary (cf SCR Part 70, rule 5)

The time for an application under section 63 (10) of the Trustee Act 1925 is, subject to that subsection, 28 days after the date of receipt by the applicant of notice under section 63 (8) of that Act or the date of entry of the order containing the opinion, advice or direction, whichever date is the later.

pt 55, div 2 (rules 55.1–55.7): Ins 2007 (501), Sch 1 [7].

55.4 Appeal (cf SCR Part 70, rule 6)

An appeal lies to the Court of Appeal from an opinion, advice, direction or order given or made by the Supreme Court under section 63 of the Trustee Act 1925, including an opinion, advice, direction or order given or made by an associate Judge.

Note—

Pursuant to section 104 of the Supreme Court Act 1970, this rule overrides the prohibition on an appeal from an associate Judge that would otherwise exist under that section.

pt 55, div 2 (rules 55.1–55.7): Ins 2007 (501), Sch 1 [7].

Division 2 New trustees

pt 55, div 2 (rules 55.1–55.7): Ins 2007 (501), Sch 1 [7].

55.5 Application (cf SCR Part 70, rule 7)

This Division applies to an application for the appointment of a new trustee under Part 3 of the Trustee Act 1925 (a Part 3 application).

pt 55, div 2 (rules 55.1–55.7): Ins 2007 (501), Sch 1 [7].

55.6 Evidence generally (cf SCR Part 70, rule 8)

The evidence in support of a Part 3 application must show each of the following:

(a)  the nature of the trusts still subsisting,

(b)  the nature and value of the trust property,

(c)  whether any and, if so, what part of the trust property is subject to the Real Property Act 1900,

(d)  the person beneficially entitled,

(e)  the fitness of the proposed new trustee,

(f)  the consent of the proposed new trustee.

pt 55, div 2 (rules 55.1–55.7): Ins 2007 (501), Sch 1 [7].

55.7 Fitness of new trustee (cf SCR Part 70, rule 9)

(1)  Only one affidavit of the fitness of a proposed new trustee may be required, unless the Supreme Court otherwise orders.

(2)  The affidavit must set out the following:

(a)  the proposed new trustee’s position in life,

(b)  how long the deponent has known the proposed new trustee,

(c)  that the proposed new trustee is, to the knowledge of the deponent, of good credit,

(d)  that the proposed new trustee is, to the best of the information and belief of the deponent, of good character, repute and business habits.

pt 55, div 2 (rules 55.1–55.7): Ins 2007 (501), Sch 1 [7].

Division 3 Payment into court

pt 55, div 3: Ins 2007 (501), Sch 1 [7]. Subst 2008 (494), Sch 1 [11].

55.8 Application (cf SCR Part 70, rule 10)

This Division applies to the payment of funds into court under Part 4 of the Trustee Act 1925 and to proceedings arising out of payment into court under that Part.

rule 55.8: Ins 2007 (501), Sch 1 [7]. Subst 2008 (494), Sch 1 [11].

55.9 Proceedings for directions as to payment into court (cf SCR Part 70, rules 11 and 12)

(1)  If a trustee proposes to pay money or securities into court, the trustee must commence proceedings in the court by filing a summons seeking to have the money or the securities paid into court.

(2)  The summons:

(a)  must be supported by an affidavit that complies with rule 55.10, and

(b)  if the payment is wholly or partly money, must be accompanied by a cheque payable to “The Supreme Court of New South Wales” in the amount of the money to be paid into court.

(3)  If the money is paid into court by a cheque, the money is to be taken to have been paid into court on the filing of the summons, without the need for any further directions.

(4)  Unless the Supreme Court otherwise orders, the summons must not join any person as a defendant in the proceedings.

(5)  Unless the Supreme Court otherwise orders, a copy of the summons must be served on each person identified in the affidavit as a person interested in or entitled to the money or securities.

(6)  A person paying money or securities into court may make an application, by notice of motion in the proceedings in which the money or securities were paid, for an order that the person’s costs be payable from the money or securities.

rule 55.9: Ins 2007 (501), Sch 1 [7]. Subst 2008 (494), Sch 1 [11]; 2009 (88), Sch 1 [14].

55.10 Affidavit in support of summons (cf SCR Part 70, rule 13)

The affidavit under rule 55.9 must set out the following:

(a)  a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose,

(b)  the amount and description of the funds,

(c)  the name and address, so far as known to the deponent, of each person interested in or entitled to the funds,

(d)  if any person interested in or entitled to the funds is a minor:

(i)  the name and address, so far as known to the deponent, of a parent or guardian of the minor’s person or estate, or

(ii)  if the minor has no such parent or guardian or any such parent’s or guardian’s name or address is unknown to the deponent, the name and address, so far as known to the deponent, of a person with whom the minor resides or in whose care the minor is,

(e)  if any person interested in or entitled to the funds is a protected person:

(i)  the name and address, so far as known to the deponent, of the protected person’s manager, or

(ii)  if the protected person has no manager or any such manager’s name or address is unknown to the deponent, the name and address, so far as known to the deponent, of a person with whom the protected person resides or in whose care the protected person is,

(f)  the name of the person paying the funds into court and his or her address for service.

rules 55.10–55.12: Ins 2007 (501), Sch 1 [7]. Subst 2008 (494), Sch 1 [11].

55.11 Proceedings for directions as to payment out of court

(1)  Funds that have been paid into court may only be paid out of court pursuant to the directions of the Supreme Court.

(2)  An application for such directions is to be made by filing a notice of motion in the proceedings in which the funds were paid into court.

rules 55.10–55.12: Ins 2007 (501), Sch 1 [7]. Subst 2008 (494), Sch 1 [11].

55.12 Inquiries (cf SCR Part 70, rule 15)

A person paying funds into court must answer all such inquiries relating to the application of the funds as the Supreme Court may make or direct.

rules 55.10–55.12: Ins 2007 (501), Sch 1 [7]. Subst 2008 (494), Sch 1 [11].

55.13 (Repealed)

rule 55.13: Ins 2007 (501), Sch 1 [7]. Rep 2008 (494), Sch 1 [11].

Division 4 Distribution of assets

pt 55, div 4: Ins 2007 (501), Sch 1 [7].

55.14 Notice of intended distribution (cf SCR Part 70, rule 16)

(1)  A notice under section 60 (1) of the Trustee Act 1925 must be published:

(a)  if it relates to a deceased estate trust in respect of:

(i)  a deceased person who was resident in the State when he or she died, in a newspaper circulating in the district where the deceased person resided, or

(ii)  a deceased person who was not resident in the State when he or she died, in a Sydney daily newspaper, or

(b)  in any other case, in a Sydney daily newspaper.

(2)  This rule is subject to section 60 (8) of the Trustee Act 1925.

(3)  In this rule, deceased estate trust means a trust that has arisen in respect of a deceased estate for which probate or letters of administration has or have been granted, or has or have been sealed under section 107 of the Probate and Administration Act 1898, by the Supreme Court.

rule 55.14: Ins 2007 (501), Sch 1 [7]. Am 2008 (63), Sch 1 [11].

Part 56 Matters arising under the Adoption Act 2000

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.1 Interpretation (cf SCR Part 73, rule 1)

(1)  Words and expressions used in this Part have the same meanings as they have in the Adoption Act 2000.

(2)  In this Part, a reference to an originating process includes a reference to a notice of motion referred to in rule 56.2 (1).

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.2 Commencement of proceedings (cf SCR Part 73, rule 4)

(1)  Once proceedings (the original proceedings) have been commenced under the Adoption Act 2000 in relation to any person, any further proceedings under that Act in relation to the same person (whether or not they form part of, or relate to, the original proceedings), are to be commenced by notice of motion filed in the original proceedings.

Note—

Pursuant to rule 6.4, the original proceedings must be commenced by summons.

(2)  Applications for adoption orders for 2 or more children may be joined in one application if the same person is the proposed adoptive parent, or the same persons are the proposed adoptive parents, of all the children.

(3)  The originating process is not to state a return day.

(4)  Nothing in subrule (3) affects any requirement under rule 56.5 to state an appointment for a preliminary hearing.

(5)  The Supreme Court may of its own motion appoint a day for the hearing of the proceedings.

(6)  If the Supreme Court appoints a day for hearing the proceedings, it must ensure that the parties are given notice of the appointment at least 5 days before the day appointed.

(7)  If the Supreme Court makes an appointment for hearing under this rule, it may give directions for service of notice of the appointment or for otherwise notifying the parties of the appointment.

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.3 Duty to make full and frank disclosure (cf SCR Part 73, rule 3)

Each party to proceedings in the Supreme Court under the Adoption Act 2000 has a duty to the Court to make known fully and frankly all matters relevant to the making of an adoption order, whether those matters tend to support or tend not to support making the order.

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.4 How application for adoption order is to be dealt with (cf SCR Part 73, rule 6)

(1)  Unless the Supreme Court otherwise orders, an application for an adoption order is to be dealt with and determined by the Court in the absence of the public and without any attendance by or on behalf of the plaintiff.

(2)  If it is not appropriate for an application for an adoption order to be dealt with without the attendance by and on behalf of the plaintiff, the plaintiff must, in the originating process, apply for a preliminary hearing and for directions relating to the hearing.

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.5 Preliminary hearing (cf SCR Part 73, rule 8)

(1)  The plaintiff may, in the originating process, apply for a preliminary hearing and, if the plaintiff does so, the originating process must contain an appointment for a preliminary hearing.

(2)  A party may obtain a preliminary hearing by filing a notice of motion.

(3)  The party applying for a preliminary hearing must state shortly in the originating process or notice of motion the terms, or the effect, of any order or direction for which the party will apply at the preliminary hearing.

(4)  A person other than a party may apply for a preliminary hearing by filing a notice of motion that seeks the approval of the Supreme Court as referred to in the regulations under the Adoption Act 2000.

(5)  The Supreme Court may grant such approval on perusal of the notice of motion and the evidence filed in support of the notice of motion before hearing the notice of motion and without affording any person other than the applicant an opportunity to be heard.

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.6 Applications appropriate for preliminary hearing (cf SCR Part 73, rule 10)

(1)  Applications appropriate for a preliminary hearing are applications for any order or direction that the Supreme Court should determine before it determines the application for an adoption order or other principal application.

(2)  Applications appropriate for a preliminary hearing include applications relating to the following:

(a)  joinder of a party in accordance with section 118 of the Adoption Act 2000, including joinder of a non-consenting father,

(b)  giving notice of proceedings to any person,

(c)  appointing a guardian ad litem in accordance with section 123 of the Adoption Act 2000 or guardian ad litem or amicus curiae in accordance with section 124 of the Adoption Act 2000,

(d)  a consent dispense order,

(e)  the placement for adoption of an Aboriginal or Torres Strait Islander child, if a preliminary hearing is required by section 80 (2) of the Adoption Act 2000,

(f)  the adoption of an Aboriginal or Torres Strait Islander child,

(g)  the registration of an adoption plan,

(h)  dispensing with notice under section 88 (4) of the Adoption Act 2000,

(i)  the revocation of a consent dispense order.

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.7 Filing of report in accordance with section 91 of the Adoption Act 2000 (cf SCR Part 73, rule 12)

A plaintiff applying for an adoption order in relation to a child under 18 years of age must file a report under section 91 of the Adoption Act 2000:

(a)  except as provided by paragraph (b), when filing the originating process, or

(b)  if there is a preliminary hearing, before the preliminary hearing.

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.8 Evidence in support of application for adoption order (cf SCR Part 73, rule 13)

Evidence in support of an application for an adoption order must include evidence of the following:

(a)  the matters specified in section 90 of the Adoption Act 2000,

(b)  the facts and circumstances that give the Supreme Court jurisdiction in accordance with section 23, 106 or 107 of the Adoption Act 2000,

(c)  the date and place of the child’s birth,

(d)  the names of the child, including all names that the child has or has had, and the facts relating to any change of the child’s name,

(e)  the names that it is proposed the child should have on the making of the adoption order, showing separately:

(i)  the proposed given name or names and the proposed surname, and

(ii)  all facts relating to any consent required under section 101 (4) of the Adoption Act 2000, and

(iii)  any relevant special reasons under section 101 (5) of the Adoption Act 2000,

(f)  the name, place of residence and occupation of each person with whom the child resides or who has the child in that person’s care or custody,

(g)  the name, place of residence, age and occupation of each proposed adoptive parent,

(h)  if it is proposed that there be one adoptive parent, the facts and circumstances that show that an order may be made having regard to the provisions of section 27 of the Adoption Act 2000,

(i)  if it is proposed that a couple be the adoptive parents, the facts and circumstances that show that an order may be made having regard to the provisions of section 28 of the Adoption Act 2000,

(j)  the following matters relating to consents under the Adoption Act 2000 or the regulations under that Act:

(i)  the facts and circumstances relating to which persons’ consents are necessary,

(ii)  the provisions of the Adoption Act 2000 or regulations that make the consents necessary,

(iii)  consents that have been obtained,

(iv)  notice or advice to the birth father under section 56 of the Adoption Act 2000,

(v)  consents for which there is a consent dispense order,

(vi)  consents for which it is contended that the court should make a consent dispense order,

(k)  whether there is, or has been, an adoption plan, the facts and circumstances relating to the making of any adoption plan, whether the adoption plan has been registered and the terms of any adoption plan that remains in effect,

(l)  the opinions, and reasons for those opinions, of persons who are not related to the proposed adoptive parent or parents relating to the adoptive parent’s or parents’ character and suitability to be an adoptive parent or adoptive parents,

(m)  the facts and circumstances relating to the principles stated in section 8 (1) of the Adoption Act 2000 and the matters to which the Court is to have regard in accordance with section 8 (2) of the Adoption Act 2000,

(n)  the facts and circumstances relied on to show that the best interests of the child will be promoted by the adoption,

(o)  the facts and circumstances relied on to show that the wishes and feelings of the child have been ascertained and that due consideration has been given to those wishes and feelings,

(p)  whether there have been any proceedings relating to the interests, welfare or adoption of the child under the law of New South Wales or of the Commonwealth or any other place, whether any orders relating to the interests, welfare or adoption of the child have been made in any such proceedings, the terms of those orders and whether they remain in effect,

(q)  whether the child is, or has ever been, an immigrant and whether the Minister administering the Immigration (Guardianship of Children) Act 1946 of the Commonwealth has consented to the making of the application for adoption,

(r)  whether the child is a non-citizen child, showing whether the child is a non-citizen child from a Convention country or from another country outside Australia,

(s)  whether a proposed adoptive parent is a step-parent or relative of the child,

(t)  if a proposed adoptive parent is a step-parent of the child, whether leave of the Family Court of Australia has been obtained under section 60G of the Family Law Act 1975 of the Commonwealth,

(u)  whether any notice has been given to persons notice to whom is referred to in section 88 of the Adoption Act 2000 (which relates, among other persons, to persons whose consent is required and has not been given and has not been dispensed with).

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.9 Judicial notice of instrument of consent (cf SCR Part 73, rule 14)

The Supreme Court may take notice, without verification, of an instrument of consent:

(a)  that appears on its face to have been given in accordance with section 61 of the Adoption Act 2000, and

(b)  that appears on its face to have been witnessed in accordance with section 62 of the Adoption Act 2000, and

(c)  that is accompanied by statements that on their face appear to have been made in accordance with sections 61 and 62 of the Adoption Act 2000.

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.10 Notice to be given to Director-General (cf SCR Part 73, rule 15)

(1)  Notice must be given to the Director-General of any application for the discharge of an adoption order, declaration of validity, declaration that an adoption is not recognised or an order terminating a legal relationship.

(2)  The Supreme Court must not determine any application referred to in subrule (1) unless the Director-General has had a reasonable opportunity to become a party to the proceedings.

(3)  Despite subrule (2), the Supreme Court may determine an application referred to in subrule (1) without the Director-General having a reasonable opportunity to become a party to the proceedings if the Court considers it necessary in the circumstances.

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.11 Proper officer of the Court (cf SCR Part 73, rule 16)

For the purposes of section 143 (3) of the Adoption Act 2000, any registrar of the Supreme Court is a proper officer of the Court.

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

56.12 Access to Court records (cf SCR Part 73, rule 17)

(1)  This rule applies to any application under section 143 (2) of the Adoption Act 2000 for the supply of information from records of proceedings in the Court.

(2)  The Supreme Court may deal with the application informally by correspondence or on the personal attendance of the applicant without conducting a formal hearing.

(3)  The applicant must fulfil such reasonable requirements as may be made by the Supreme Court as to:

(a)  the verification of facts on which the application is based, and

(b)  identification of the proceedings in the Supreme Court to which the application relates, and

(c)  giving notice to any person, and

(d)  compliance with the requirements of the Adoption Act 2000 and the regulations under that Act, and

(e)  any other matter.

pt 56 (rules 56.1–56.12): Ins 2007 (501), Sch 1 [7].

Part 57 Matters arising under the NSW Trustee and Guardian Act 2009 or Guardianship Act 1987

pt 57: Ins 2007 (501), Sch 1 [7].

pt 57, hdg: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [19].

Division 1 Preliminary

pt 57, div 1: Ins 2007 (501), Sch 1 [7].

57.1 Interpretation

(1)  Words and expressions used in this Part have the same meanings as they have in the NSW Trustee and Guardian Act 2009 or the Guardianship Act 1987, as the case requires.

(2)  In this Part, a reference to an originating process includes a reference to a notice of motion referred to in rule 57.2 (1).

rule 57.1: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [20].

57.2 Commencement of proceedings (cf SCR Part 76, rule 5)

(1)  Once proceedings (the original proceedings) have been commenced under the NSW Trustee and Guardian Act 2009 or the Guardianship Act 1987 in relation to any person, any further proceedings under that Act in relation to the same person (whether or not they form part of, or relate to, the original proceedings), are to be commenced by notice of motion filed in the original proceedings.

Note—

Pursuant to rule 6.4, the original proceedings must be commenced by way of summons.

(2)  If it is necessary for the NSW Trustee and Guardian to apply to the Supreme Court, he or she may apply on report and proposal.

rule 57.2: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [21]–[23].

Division 2 Applications under the NSW Trustee and Guardian Act 2009

pt 57, div 2: Ins 2007 (501), Sch 1 [7].

pt 57, div 2, hdg: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [24].

57.3 Parties to application under section 41 or 54 (cf SCR Part 76, rule 9)

(1)  If an application is made under section 41 of the NSW Trustee and Guardian Act 2009, the person in respect of whom the application is made must be made a defendant.

(2)  If an application is made under section 54 of the NSW Trustee and Guardian Act 2009, the person in respect of whom the application is made must be made a defendant but need not be served.

rule 57.3: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [25] [26].

57.4 Business concerning application under section 41 in the absence of parties (cf SCR Part 76, rule 10)

If:

(a)  the plaintiff claims a declaration and order under section 41 of the NSW Trustee and Guardian Act 2009, and

(b)  no appearance is entered within the time limited for appearance, and

(c)  there is no attendance, at the time appointed by the originating process for the hearing, by any person opposing the claim,

the Supreme Court may determine or deal with the application in the absence of the parties and without any attendance by or on behalf of any person.

rule 57.4: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [27].

57.5 Evidence in support of application under section 41 or 54 (cf SCR Part 76, rule 11)

(1)  The evidence in support of an application under section 41 or 54 of the NSW Trustee and Guardian Act 2009 must include the following:

(a)  an affidavit or affidavits setting out:

(i)  the conduct and conversation or conversations claimed to establish that the defendant is incapable of managing his or her affairs, and

(ii)  the nature and amount of the property of the defendant, and

(iii)  the names of the defendant’s nearest relatives, so far as they are known, and the attitude of each of them to the application, and

(iv)  the name of, and reason for selecting, the proposed manager,

(b)  the affidavits of at least 2 medical practitioners or other persons qualified to give an expert opinion on the defendant’s condition, each of whom must set out:

(i)  his or her formal qualifications, the extent of his or her experience in practice and his or her special qualifications in regard to questions relating to the defendant’s condition, and

(ii)  his or her diagnosis of the defendant’s condition, explained in his or her own words and set out in his or her own handwriting, and

(iii)  that, in his or her opinion, the defendant is incapable of managing his or her affairs, and

(iv)  the reasons for that opinion or the tests on which that opinion is based, set out in his or her own words and handwriting,

(c)  except where the proposed manager is:

(i)  the NSW Trustee and Guardian, or

(ii)    (Repealed)

(iii)  a trustee company,

the affidavits of at least 2 persons as to the fitness of the proposed manager,

(d)  except where the proposed manager is:

(i)  the NSW Trustee and Guardian, or

(ii)  the plaintiff,

a consent executed by the proposed manager and an affidavit verifying the execution of the consent.

(2)  Subrule (1) (a) and (b) do not apply to an application under section 54 of the NSW Trustee and Guardian Act 2009.

rule 57.5: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [28]–[32].

57.6 Appointment of managers under section 52 (cf SCR Part 76, rule 12)

If it appears expedient:

(a)  that several persons should be appointed managers pursuant to a special order referred to in section 52 of the NSW Trustee and Guardian Act 2009, and

(b)  that one or more of them should continue to act after the death or discharge of the others, or any of them,

the order appointing the manager may direct that, after any such death or discharge, the surviving or continuing manager or managers are to continue to act.

rule 57.6: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [33].

57.7 “Usual orders” under sections 41 and 54 (cf SCR Part 76, rules 13 and 13A)

(1)  If:

(a)  under section 41 of the NSW Trustee and Guardian Act 2009, the Supreme Court makes a declaration that the defendant is incapable of managing his or her affairs, or

(b)  under section 54 of the NSW Trustee and Guardian Act 2009, the Supreme Court makes a declaration that the defendant is a missing person,

it may, with or without further order, also make the usual orders.

(2)  The usual orders referred to in subrule (1) are as follows:

(a)  an order that the defendant’s estate be subject to management under the NSW Trustee and Guardian Act 2009,

(b)  an order that:

(i)  the person proposed in the originating process be appointed manager of the defendant’s estate, to act in relation thereto under the order and direction of the NSW Trustee and Guardian, or

(ii)  if the NSW Trustee and Guardian is the person proposed, that the management of the defendant’s estate be committed to the NSW Trustee and Guardian,

(c)  if the person appointed manager of the defendant’s estate is not the NSW Trustee and Guardian, an order that the person may not do anything in reliance on the appointment until the NSW Trustee and Guardian has authorised the person to assume management of the defendant’s estate,

(d)  if 2 or more persons are appointed to be managers, an order that, on the death or discharge of any of them, custody of the defendant’s estate continues to the remainder of them,

(e)  an order that the plaintiff’s costs (and, if the defendant appears, the defendant’s costs) on an indemnity basis be paid out of the defendant’s estate,

(f)  an order that all parties be at liberty to apply as they may be advised.

rule 57.7: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [34]–[38].

57.8 Evidence in support of application under section 86 (cf SCR Part 76, rules 19 and 20)

The evidence in support of an application under section 86 of the NSW Trustee and Guardian Act 2009 must include the following:

(a)  the affidavits of at least 2 medical practitioners or other persons qualified to give an expert opinion on the defendant’s condition, each of whom must state:

(i)  his or her formal qualifications, the extent of his or her experience in practice and his or her special qualifications in regard to questions relating to the condition of the protected person, and

(ii)  that, in his or her opinion, the protected person is capable of managing his or her affairs, and

(iii)  the reasons for that opinion or the tests on which that opinion is based, set out in his or her own handwriting,

(b)  the affidavits of members of the defendant’s family or other persons, each of whom must state:

(i)  what opportunity he or she has had of assessing whether or not the protected person is capable of managing his or her affairs, and

(ii)  his or her assessment and the facts, grounds and circumstances on which he or she made his or her assessment, and

(iii)  any other facts that may be relevant.

rule 57.8: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [39].

57.9 Mode of making application under section 87 (cf SCR Part 76, rules 23A and 23B)

(1)  An application under section 87 of the NSW Trustee and Guardian Act 2009 is to be made by motion in the proceedings in which the declaration and order under section 54 of that Act were made.

(2)  Notice of the motion is to be served on the manager or on the person on whose application the declaration and order were made.

rule 57.9: Ins 2007 (501), Sch 1 [7]. Am 2009 (501), Sch 1 [40] [41].

57.10 (Repealed)

rule 57.10: Ins 2007 (501), Sch 1 [7]. Rep 2009 (501), Sch 1 [42].

Division 3 Miscellaneous

pt 57, div 3 (rules 57.11, 57.12): Ins 2007 (501), Sch 1 [7].

57.11 Setting aside or varying order (cf SCR Part 76, rule 16)

The Supreme Court may set aside or vary any order for the appointment of a manager or guardian or for the allowance of maintenance.

pt 57, div 3 (rules 57.11, 57.12): Ins 2007 (501), Sch 1 [7].

57.12 Review under section 6L of the Guardianship Act 1987 (cf SCR Part 76, rule 52)

(1)  An application for review under section 6L of the Guardianship Act 1987 must join the enduring guardian as a defendant.

(2)  The applicant must file and serve with the originating process an affidavit showing the applicant’s relationship to the appointor and the applicant’s interest in the matter.

pt 57, div 3 (rules 57.11, 57.12): Ins 2007 (501), Sch 1 [7].

Schedule 1 Application of rules

(Rules 1.5 and 1.6)

Column 1	Column 2	Column 3	Column 4
Court	Kinds of civil proceedings	Excluded provisions of Civil Procedure Act 2005	Excluded provisions of rules
Supreme Court	All civil proceedings
Industrial Court	All civil proceedings		Part 6 Part 16 Part 20, except for Division 4 (but Division 4 does not apply until after conciliation has been attempted under section 109 of the Industrial Relations Act 1996) Part 23, Divisions 1 and 2 Parts 37, 38 and 39 Part 42, Division 2 Part 43
Industrial Relations Commission (when constituted otherwise than as the Industrial Court)	All civil proceedings		Parts 5 and 6 Part 16 Part 17 (except to the extent to which the Commission orders that the Part is to apply) Part 20 Part 21 (except to the extent to which the Commission orders that the Part is to apply) Parts 22 and 23 Part 31, Division 1, except for rules 31.1, 31.2, 31.3, 31.4, 31.11, 31.12 and 31.16A Part 31, Division 2 Part 32 Part 34 (except to the extent to which the Commission orders that the Part is to apply) Parts 37, 38 and 39 Parts 42 and 43 Part 46
Land and Environment Court	Proceedings in Class 1, 2 or 3 of its jurisdiction		Part 6, Divisions 2 and 4 Part 20, Division 4, and Part 42, Division 3, in relation to all proceedings other than those referred to in: (a)  section 19 (a), (c), (c1), (e), (e2), (e3), (f), (f1) or (g) or 40 of the Land and Environment Court Act 1979, or (b)  section 179, 181, 677 or 730 of the Local Government Act 1993, or (c)  section 44 of the Fisheries Management Act 1994 Rules 42.1, 42.6, 42.8, 42.9, 42.18, 42.19 and 42.20
	Proceedings in Class 4 or 8 of its jurisdiction
District Court	All civil proceedings
Dust Diseases Tribunal	All civil proceedings	Part 9	Part 15, Division 3 Part 21 Part 22
Local Court	Civil proceedings under Part 3 of the Local Court Act 2007 that are held before the Local Court sitting in its General Division
	Proceedings under Part 3 of the Local Court Act 2007 that are held before the Local Court sitting in its Small Claims Division	Parts 4 and 5 Sections 60, 70, 87, 92 and 98 Division 5 of Part 6	Part 5 Part 7, Divisions 2 and 6 Part 11 Part 13 Rules 14.4 and 14.5 Rules 15.7 and 15.8 Part 15, Division 2 Rule 16.4 Part 17 Part 18, except in relation to an application under rule 23.8, 36.15, 36.16 or 43.6 Part 20, Divisions 1, 2, 3 and 4 Parts 21 and 22 Part 23, Divisions 1 and 2 Parts 24, 25, 26, 27, 28 and 29 Parts 31 and 32 Rule 36.8 Part 39, Division 2 Parts 40 and 41 Part 44, except for rule 44.1

sch 1: Am 2005 No 22, Sch 3 [4] [5]; 2005 (395), Sch 1 [58]–[64]; 2005 (396), Sch 1 [2]; 2005 (625), Sch 1 [19]; 2006 (391), Sch 1 [27]; 2007 (579), Sch 2 [9]; 2007 (580), Sch 1 [11]; 2009 (88), Sch 1 [15]; 2009 (118), rule 3 (1) (2); 2009 (570), Sch 1 [8].

Schedule 2 Local rules that prevail over these rules

(Rule 1.7)

Supreme Court Rules 1970

Part	Provision
Part 55 (Contempt)	Rule 7
Part 71A (Service and Execution of Process Act 1992 (Commonwealth))	Rule 8
Part 78 (Probate)	All rules in that Part
Part 80 (Companies (New South Wales) Code and Corporations Law)	All rules in that Part
Part 80A (Corporations Law and ASC Law)	All rules in that Part
Part 82 (Public Notaries Act 1997)	Rules 2 and 7

Supreme Court (Corporations) Rules 1999

Division	Provision
All Divisions	All rules in those Divisions

Industrial Relations Commission Rules 2009

Part	Provision
All Parts	All rules in those Parts

Land and Environment Court Rules 2007

Part	Provision
All Parts	All rules in those Parts

Dust Diseases Tribunal Rules

Rules
All rules

sch 2: Am 2005 No 22, Sch 3 [6]; 2005 (395), Sch 1 [65]; 2005 (807), Sch 1 [7]; 2006 (391), Sch 1 [28]; 2007 (448), Sch 1 [2]; 2007 (501), Sch 1 [8]; 2007 (580), Sch 1 [12]; 2008 (338), Sch 1 [22]; 2009 (570), Sch 1 [9].

Schedule 3 Fees and other prescribed amounts

(Rule 1.14)

Item	Matter for which fee payable	Fee payable
1	Rule 1.15 (Fees chargeable under section 28 of the Oaths Act 1900 by a person authorised under section 27 (2) of that Act)
	(a)  for taking an oath at the office of the authorised person	$4.00
	(b)  for taking an oath anywhere less than 5 kilometres from the office of the authorised person	$4.90
	(c)  for taking an oath anywhere 5 kilometres or more from the office of the authorised person	$18.90
	(d)  for marking an annexure or exhibit	$1.60
	(e)  for attesting a document	$4.00
2	Rule 31.31 (Fee for witness subpoenaed but not called to testify)	$214.00
3	Rule 31.33 (Fee for production of medical records)	$36.00
4	Rule 39.42 (Amounts garnishee may retain)
	(a)  to cover expenses of a garnishee order in relation to debts	$13.00
	(b)  to cover expenses of a garnishee order (other than a limited garnishee order) in relation to income	$13.00
	(c)  to cover expenses of a limited garnishee order in relation to income	Nil
	In this item, limited garnishee order means a garnishee order in respect of a judgment that is the subject of an instalment order.

sch 3: Am 2006 (717), Sch 1 [2] [3].

Schedule 4 Documents to be filed by means of ECM system

(Rule 3.4)

Part 1 Documents relating to proceedings in courts other than the Land and Environment Court

Statement of claim

Statement of cross-claim

Summons

Cross-summons

Notice of appearance

Defence

Reply

Notice of motion

Affidavit

Subpoena

Originating process under the Corporations Act 2001 of the Commonwealth

Interlocutory process under the Corporations Act 2001 of the Commonwealth

Liquidator’s consent under the Corporations Act 2001 of the Commonwealth

Part 2 Documents relating to proceedings in the Land and Environment Court

Affidavit

Application

Cross-claim

Cross-summons

Defence

Draft conditions of development consent

Draft conditions of other approvals

Minutes of order

Notice of appearance

Notice of motion

Points of claim

Points of defence

Points of reply

Reply

Statement identifying issues for separate determination

Statement of agreed facts

Statement of claim

Statement of cross-claim

Statement of fact and contentions

Statement of preliminary points of law

Submission

Subpoena

Summons

sch 4: Am 2005 (625), Sch 1 [20]; 2007 (580), Sch 1 [13] [14].

Schedule 5 (Repealed)

sch 5: Am 2006 (716), Sch 1 [31] [32]; 2009 (88), Sch 1 [16] [17]. Rep 2010 (172), Sch 1 [12].

Schedule 6 Proceedings in respect of which originating process may be served outside Australia

(cf SCR Part 10, rule 1A)

(Rule 11.2)

Originating process may be served outside Australia in relation to the following circumstances:

(a)  if the proceedings are founded on a cause of action arising in New South Wales,

(b)  if the proceedings are founded on a breach in New South Wales of a contract (wherever made), whether or not the breach is preceded or accompanied by a breach (wherever occurring) that renders impossible the performance of any part of the contract which ought to be performed in New South Wales,

(c)  if the subject-matter of the proceedings is a contract and the contract:

(i)  is made in New South Wales, or

(ii)  is made on behalf of the person to be served by or through an agent carrying on business or residing in New South Wales, or

(iii)  is governed by the law of New South Wales, or

(iv)  is one a breach of which was committed in New South Wales,

(d)  if the proceedings are founded on a tort committed in New South Wales,

(e)  if the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in New South Wales caused by a tortious act or omission wherever occurring,

(f)  if the proceedings are for contribution or indemnity in respect of a liability enforceable by proceedings in the court,

(g)  if the person to be served is domiciled or ordinarily resident in New South Wales,

(h)  if the proceedings are proceedings in respect of which the person to be served has submitted or agreed to submit to the jurisdiction of the court,

(i)  if the proceedings are properly commenced against a person served or to be served in New South Wales and the person to be served outside New South Wales is properly joined as a party to the proceedings,

(j)  if the subject-matter of the proceedings, so far as concerns the person to be served, is property in New South Wales,

(k)  if the proceedings are for the perpetuation of testimony relating to property in New South Wales,

(l)  if the proceedings concern the construction, effect or enforcement of an Imperial Act or Commonwealth Act, or a regulation or other instrument having or purporting to have effect under such an Act, affecting property in New South Wales,

(m)  if the proceedings are for the construction, rectification, setting aside or enforcement of a deed, will or other instrument or of a contract, obligation or liability, affecting property in New South Wales,

(n)  if the proceedings are for an injunction as to anything to be done in New South Wales or against the doing of any act in New South Wales, whether damages are also sought or not,

(o)  if the proceedings are for the administration of the estate of a person who dies domiciled in New South Wales, or are for relief which might be granted in proceedings for administration of such an estate,

(p)  if the proceedings are for the execution of trusts which are governed by the law of New South Wales, or are for relief which might be granted in proceedings for the execution of such trusts,

(q)  if the proceedings affect the person to be served in respect of his or her membership of a corporation incorporated in New South Wales, or of an association formed or carrying on any part of its affairs in New South Wales,

(r)  if the proceedings concern the construction, effect or enforcement of an Act or a regulation or other instrument having or purporting to have effect under an Act,

(s)  if the proceedings concern the effect or enforcement of an executive, ministerial or administrative act done or purporting to be done under an Act or regulation or other instrument having or purporting to have effect under an Act,

(t)  if the proceedings:

(i)  relate to an arbitration held in, or governed by the law of, New South Wales, or

(ii)  are commenced to enforce in New South Wales an arbitral award wherever made, or

(iii)  are for orders necessary or convenient for carrying into effect in New South Wales the whole or any part of an arbitral award wherever made,

(u)  if the proceedings are commenced to enforce in New South Wales a judgment wherever given,

(v)  if the proceedings are for relief relating to the custody, guardianship, protection or welfare of a minor, whether or not the minor is in New South Wales, which relief the court has, apart from service, jurisdiction to grant,

(w)  if the proceedings, so far as concerns the person to be served, fall partly within one or more of the foregoing paragraphs and, as to the residue, within one or more of the others of the foregoing paragraphs.

sch 6: Am 2005 (395), Sch 1 [66].

Schedule 7 Expert witness code of conduct

(Rule 31.23)

(cf SCR Schedule K)

1 Application of code

This code of conduct applies to any expert witness engaged or appointed:

(a)  to provide an expert’s report for use as evidence in proceedings or proposed proceedings, or

(b)  to give opinion evidence in proceedings or proposed proceedings.

2 General duty to the court

(1)  An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness’s area of expertise.

(2)  An expert witness’s paramount duty is to the court and not to any party to the proceedings (including the person retaining the expert witness).

(3)  An expert witness is not an advocate for a party.

3 Duty to comply with court’s directions

An expert witness must abide by any direction of the court.

4 Duty to work co-operatively with other expert witnesses

An expert witness, when complying with any direction of the court to confer with another expert witness or to prepare a parties’ expert’s report with another expert witness in relation to any issue:

(a)  must exercise his or her independent, professional judgment in relation to that issue, and

(b)  must endeavour to reach agreement with the other expert witness on that issue, and

(c)  must not act on any instruction or request to withhold or avoid agreement with the other expert witness.

5 Experts’ reports

(1)  An expert’s report must (in the body of the report or in an annexure to it) include the following:

(a)  the expert’s qualifications as an expert on the issue the subject of the report,

(b)  the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),

(c)  the expert’s reasons for each opinion expressed,

(d)  if applicable, that a particular issue falls outside the expert’s field of expertise,

(e)  any literature or other materials utilised in support of the opinions,

(f)  any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,

(g)  in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).

(2)  If an expert witness who prepares an expert’s report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report.

(3)  If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.

(4)  If an expert witness changes his or her opinion on a material matter after providing an expert’s report to the party engaging him or her (or that party’s legal representative), the expert witness must forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect containing such of the information referred to in subclause (1) as is appropriate.

6 Experts’ conference

(1)  Without limiting clause 3, an expert witness must abide by any direction of the court:

(a)  to confer with any other expert witness, or

(b)  to endeavour to reach agreement on any matters in issue, or

(c)  to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, or

(d)  to base any joint report on specified facts or assumptions of fact.

(2)  An expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement.

sch 7: Am 2005 (395), Sch 1 [67]. Subst 2006 (717), Sch 1 [4].

Schedule 8 Assignment of business in the Supreme Court

(Rules 1.16 and 45.8)

Part 1 Legislation of New South Wales

Column 1	Column 2	Column 3	Column 4
Act or instrument	Provisions	Division	List
Administrative Decisions Tribunal Act 1997	Section 118, 118D or 119	Common Law	Administrative Law
Adoption Act 2000		Equity
Agricultural Tenancies Act 1990		Common Law
Apiaries Act 1985	Section 45	Equity
Associations Incorporation Act 1984	Section 40, 54, 55B or 58	Equity
Australian Mutual Provident Society (Demutualisation and Reconstruction) Act 1997		Equity
Bishopsgate Insurance Australia Limited Act 1983	Section 7	Equity
Building and Construction Industry Long Service Payments Act 1986		Common Law	Administrative Law
Business Names Act 2002		Common Law	Administrative Law
Casino Control Act 1992	Section 33, 34 or 155	Common Law	Administrative Law
Charitable Fundraising Act 1991		Equity
Children and Young Persons (Care and Protection) Act 1998		Equity
Children (Care and Protection) Act 1987		Equity
Children (Criminal Proceedings) Act 1987		Common Law
Commercial Arbitration Act 1984, except in relation to arbitration proceedings that are appropriate for assignment to the Technology and Construction List		Equity	Commercial
Commercial Arbitration Act 1984, in relation to arbitration proceedings that are appropriate for assignment to the Technology and Construction List		Equity	Technology and Construction
Community Land Development Act 1989		Equity
Community Land Management Act 1989		Equity
Community Services (Complaints, Reviews and Monitoring) Act 1993		Equity
Community Welfare Act 1987		Common Law
Companies Act 1961	Section 9 or 166B	Common Law	Administrative Law
Companies (Acquisition of Shares) (New South Wales) Code		Equity
Companies (Application of Laws) Act 1981		Equity
Companies (New South Wales) Code		Equity
Competition Policy Reform (New South Wales) Act 1995		Common Law or Equity (as appropriate in the circumstances)
Confiscation of Proceeds of Crime Act 1989		Common Law
Constitution Further Amendment (Referendum) Act 1930	Section 28	Common Law
Consumer, Trader and Tenancy Tribunal Act 2001	Section 65, 66 and 67	Common Law	Administrative Law
Conveyancers Licensing Act 2003	All provisions except in relation to proceedings assigned to the Court of Appeal	Common Law
Co-operative Housing and Starr-Bowkett Societies Act 1998		Equity
Co-operatives Act 1992		Equity
Corporations (New South Wales) Act 1990	any “national scheme law” as defined in section 60	Equity
Crimes Act 1900	Section 172	Common Law
Crimes (Appeal and Review) Act 2001	Section 79	Common Law
Crimes (Forensic Procedures) Act 2000	Section 74	Common Law
Criminal Assets Recovery Act 1990		Common Law
Criminal Procedure Act 1986	Section 30 or Part 5 of Chapter 4	Common Law
Dividing Fences Act 1991	Section 19 (2) or (3)	Common Law	Administrative Law
Driving Instructors Act 1992	Section 39 (1)	Common Law	Administrative Law
Drug Misuse and Trafficking Act 1985	Section 39R	Common Law
Electricity Supply Act 1995		Common Law
Evidence on Commission Act 1995	Section 33	Common Law
Exotic Diseases of Animals Act 1991		Common Law
Fair Trading Act 1987	All provisions except in relation to proceedings specified in the Third Schedule to the Supreme Court Act 1970 or assigned by Part 75 of the Supreme Court Rules 1970	Common Law or Equity (as appropriate in the circumstances)
Family Provision Act 1982		Equity
Felons (Civil Proceedings) Act 1981		Common Law or Equity (whichever the other proceedings to which the proceedings relate have been assigned)
Fines Act 1996	Section 75 (9)	Common Law	Administrative Law
Forfeiture Act 1995		Equity
Freedom of Information Act 1989	Section 58A (1)	Common Law	Administrative Law
Funeral Funds Act 1979	Section 74	Equity
	Part 6	Common Law	Administrative Law
Futures Industry (New South Wales) Code		Equity
Gas Industry Restructuring Act 1986		Equity
Gas Supply Act 1996	Section 17	Common Law
Guardianship Act 1987		Equity
Independent Commission Against Corruption Act 1988		Common Law	Administrative Law
Landlord and Tenant Act 1899		Common Law
Law Enforcement (Powers and Responsibilities) Act 2002	Division 2 of Part 17	Common Law
Liquor Act 1982		Common Law
Listening Devices Act 1984		Common Law
Loan Fund Companies Act 1976	Section 64	Common Law	Administrative Law
Local Government Act 1993	Section 330 or 485	Common Law	Administrative Law
Married Persons (Equality of Status) Act 1996	Section 13	Equity
Mental Health Act 2007	Section 163 or 166	Equity
Mental Health (Criminal Procedure) Act 1990		Common Law
Mining Act 1992	Section 319	Common Law
Minors (Property and Contracts) Act 1970		Equity
Motor Accidents Act 1988		Common Law
Motor Accidents Compensation Act 1999		Common Law
Motor Dealers Act 1974	Section 38 (2), 38 (3B) (a) or Part 5A	Common Law	Administrative Law
	Other than proceedings under section 38 (2), 38 (3B) (a) or Part 5A	Common Law
Murray–Darling Basin Act 1992	Section 27	Common Law	Administrative Law
Mutual Recognition (New South Wales) Act 1992		Common Law
National Companies and Securities Commission (State Provisions) Act 1981		Equity
National Electricity (NSW) Law	Section 46 or 48	Common Law	Administrative Law
National Trust of Australia (New South Wales) Act 1990		Equity
Native Title (New South Wales) Act 1994		Common Law	Administrative Law
New South Wales Crime Commission Act 1985		Common Law
NSW Trustee and Guardian Act 2009		Equity
Offshore Minerals Act 1999	Section 49 (2), 136 (2), 196 (2), 351, 354 (1) or 355 (1)	Equity
Ombudsman Act 1974	Section 21A, 35A or 35B	Common Law	Administrative Law
Parliamentary Electorates and Elections Act 1912		Common Law
Petroleum (Submerged Lands) Act 1982	Section 8 or 73	Common Law	Administrative Law
Pipelines Act 1967	Section 33 or 52	Common Law	Administrative Law
Police Integrity Commission Act 1996		Common Law	Administrative Law
Powers of Attorney Act 2003		Equity
Price Exploitation Code (New South Wales) Act 1999		Common Law or Equity (as appropriate in the circumstances)
Prisoners (Interstate Transfer) Act 1982	Section 16	Common Law
Professional Standards Act 1994	Section 15	Common Law
Property (Relationships) Act 1984		Equity
Protection of the Environment Operations Act 1997		Common Law
Public Notaries Act 1997	Section 6 or 10	Common Law
Real Property Act 1900		Equity
Registered Clubs Act 1976	Section 42 (1)	Common Law
Residential Tenancies Act 1987		Common Law
Restraints of Trade Act 1976		Equity
Restricted Premises Act 1943		Common Law
Retail Leases Act 1994	Section 62B (1) or (2), 76A, 77 (2) or (4)	Equity
Retirement Villages Act 1999	All sections other than section 183 (1)	Equity
Royal Commission (Police Service) Act 1994	Section 11B	Common Law	Administrative Law
Royal Commissions Act 1923	Section 18B	Common Law	Administrative Law
Rural Assistance Act 1989	Section 54	Common Law	Administrative Law
Securities Industry Act 1975		Equity
Securities Industry (Application of Laws) Act 1981		Equity
Securities Industry (New South Wales) Code		Equity
State Owned Corporations Act 1989	Clause 9 of Schedule 10	Equity
State Records Act 1998	Section 42, 45 or 72	Equity
Status of Children Act 1996		Equity
Strata Schemes (Freehold Development) Act 1973		Equity
Strata Schemes (Leasehold Development) Act 1986		Equity
Strata Schemes Management Act 1996	Section 200	Equity
Summary Offences Act 1988	Section 25 or 26	Common Law	Administrative Law
Supreme Court Act 1970	Section 70	Common Law
Surveying Act 2002		Common Law	Administrative Law
Taxation Administration Act 1996	Part 10	Equity
Testator’s Family Maintenance and Guardianship of Infants Act 1916		Equity
Totalizator Act 1997	Section 39 or 46	Common Law	Administrative Law
Totalizator Agency Board Privatisation Act 1997	Section 44	Common Law	Administrative Law
Travel Agents Act 1986	Section 39	Common Law
Trustee Companies Act 1964		Equity
Uncollected Goods Act 1995	Section 18	Equity
Victims Support and Rehabilitation Act 1996		Common Law
Warnervale Airport (Restrictions) Act 1996	Section 13	Equity
Witness Protection Act 1995	Section 17, 19 or 34 (2)	Common Law
Workers Compensation Act 1987		Common Law

Part 2 Legislation of the Commonwealth

Column 1	Column 2	Column 3	Column 4
Act or instrument	Provisions	Division	List
Admiralty Act 1988		Equity	Admiralty
Australian Securities and Investments Commission Act 2001		Equity
Circuit Layouts Act 1989		Equity
Commonwealth Electoral Act 1918	Section 383	Common Law
Copyright Act 1968		Equity
Corporations Act 2001		Equity
Crimes (Superannuation Benefits) Act 1989		Common Law
Customs Act 1901	Section 205F (1), 206 (6), 207 (2), 221 or 245 (1)	Common Law
Designs Act 2003		Equity
Foreign Judgments Act 1991	Part 2	Common Law
Futures Industry Act 1986		Equity
International War Crimes Tribunals Act 1995		Common Law
Judiciary Act 1903	Section 39B (1B) (b) or 39B (1C) (d)	Common Law	Administrative Law
Marriage Act 1961		Equity
Mutual Assistance in Criminal Matters Act 1987		Common Law
Navigation Act 1912		Equity	Admiralty
Offshore Minerals Act 1994	Section 49 (2), 136 (2), 196 (2), 351, 354 (1) or 355 (1)	Equity
Patents Act 1990		Equity
Proceeds of Crime Act 1987		Common Law
Racial Discrimination Act 1975		Common Law	Administrative Law
Retirement Savings Accounts Act 1997	Section 43, 74, 119, 158 (4), 160, 161 (1), (2), (8) or (10), 162, 163, 166 or 176	Equity
Service and Execution of Process Act 1992	Section 57 (1), 67 (1), 76 (1), 79 (1), 93 (1), 101 or 105 Section 72 (1) or 86 (except in relation to proceedings before the Court)	Common Law
Shipping Registration Act 1981		Equity	Admiralty
Telecommunications (Interception and Access) Act 1979	Section 107A (3) or (4)	Common Law
Trade Marks Act 1995		Equity
Trade Practices Act 1974	Division 1 or 1A of Part V	Common Law or Equity (as appropriate in the circumstances)

sch 8: Ins 2006 (391), Sch 1 [29]. Am 2006 No 120, Sch 2.107; 2007 (164), Sch 1 [12] [13]; 2007 (501), Sch 1 [9] [10]; 2008 (338), Sch 1 [23]; 2009 (88), Sch 1 [18] [19]; 2009 (501), Sch 1 [43]; 2010 No 34, Sch 2.51.

Schedule 9 Assignment of business in the District Court

(Rule 45.14)

Part 1 Legislation of New South Wales

Column 1	Column 2	Column 3
Act or instrument	Provisions	List
Police Act 1990	Section 216A	Special Statutory Compensation List
Police Regulation (Superannuation) Act 1906	Section 21	Special Statutory Compensation List
Sporting Injuries Insurance Act 1978	Section 29	Special Statutory Compensation List
Workers Compensation Act 1987		Coal Miners’ Workers Compensation List
Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987	Section 16 or 30	Special Statutory Compensation List
Workers’ Compensation (Dust Diseases) Act 1942	Section 8I	Special Statutory Compensation List
Workplace Injury Management and Workers Compensation Act 1998		Coal Miners’ Workers Compensation List

Part 2 Legislation of the Commonwealth

Column 1	Column 2	Column 3
Act or instrument	Provisions	List

sch 9: Ins 2006 (391), Sch 1 [29].

Schedule 10 Provisions regarding procedure under particular legislation

(Rule 1.26)

Part 1 New South Wales legislation

Associations Incorporation Act 1984

1 Winding up

The rules relating to the winding up of bodies other than companies (including, if applicable, the Supreme Court (Corporations) Rules 1999) apply, so far as applicable, to, and in relation to, the winding up by the Supreme Court of an incorporated association.

2 Appeal from liquidator etc: section 58

(1)  A liquidator or provisional liquidator referred to in section 58 of the Act may, on application in writing, grant, by notice in writing, an extension of the time limited for instituting an appeal from his or her act, omission or decision except where the Supreme Court has limited the time for instituting an appeal.

(2)  If the liquidator or provisional liquidator extends the time for instituting an appeal, he or she must deliver the notice referred to in subclause (1) to the applicant, who must file the notice with the originating process instituting the appeal.

(3)  An application referred to in subclause (1) must be made to the person before the expiration of the time allowed for instituting an appeal.

Australian Mutual Provident Society (Demutualisation and Reconstruction) Act 1997

Application of other rules of court

(1)  The provisions of Part 80A of the Supreme Court Rules 1970, so far as applicable and making such changes as it is necessary to make, apply to proceedings under the Act commenced before the Supreme Court (Corporations) Rules 1999 commenced.

(2)  The provisions of the Supreme Court (Corporations) Rules 1999, so far as applicable and making such changes as it is necessary to make, apply to all other proceedings under the Act.

Confiscation of Proceeds of Crime Act 1989

1 Statement in summons

(1)  The applicant for an order under the Act must file with his or her summons a statement in summary form of the general nature of the facts and circumstances relied on.

(2)  This clause does not apply to an application under section 77 or 82 of the Act.

2 Notice of discharge of order: section 26

Notice of discharge of a pecuniary penalty order, as referred to in section 26 (2) of the Act, must be given by the appropriate officer on whose application the order was registered by filing, in the court in which the order was registered, a notice:

(a)  that states that the order has been discharged, and

(b)  that annexes a sealed copy of the order by which the relevant conviction was quashed (as referred to in section 26 (1) (a) of the Act) or the pecuniary penalty order was discharged (as referred to in section 26 (1) (b) of the Act).

3 Form of acceptance etc of allegation: section 31

An allegation may be accepted or a matter may be indicated for the purposes of section 31 (5) (b) of the Act in writing signed by the relevant party’s legal representative or, if the person is unrepresented, by the relevant party.

4 Form of notice: section 44 (2)

The form of notice prescribed for the purposes of section 44 (2) of the Act is a form in writing signed by the appropriate officer or the appropriate officer’s legal representative.

5 Examination order: prescribed officer: section 45

For the purposes of section 45 (1) (c) of the Act, a registrar is a prescribed officer of the Supreme Court.

6 Information for production order or search warrant: sections 58 (1) and 66 (1)

An information setting out the grounds referred to in section 58 (1) or 66 (1) of the Act may be laid before the Supreme Court by filing an affidavit setting out those grounds.

7 Registration of interstate orders: section 77

(1)  A summons seeking registration of an interstate order must join as defendant the person against whom the order was made.

(2)  Unless the Supreme Court otherwise orders, the plaintiff may proceed without service on the defendant of the summons.

(3)  If the plaintiff includes in the summons a request that the application be granted under this subclause, the Supreme Court may deal with the application in the absence of the public and without any attendance by or on behalf of the plaintiff.

(4)  If an order is made for registration of an interstate order, the plaintiff must forthwith serve on the defendant both the interstate order and a sealed copy of the order for registration of the interstate order.

(5)  A copy referred to in section 77 (2) of the Act is registered when the order for its registration is entered.

(6)  The registration of an order referred to in section 82 (1) of the Act is cancelled when the order cancelling its registration is entered.

Contractors Debts Act 1997

1 Application: section 7 (1)

(1)  This clause applies if an application for a debt certificate under section 7 (1) or (1A) of the Act is made, otherwise than at the hearing of proceedings, in relation to a judgment for the recovery of money owed (the subject debt).

(2)  The application must be made by notice of motion in the proceedings in which the judgment was given or entered or in which an adjudication certificate was filed.

(3)  The evidence in support of the application must include evidence showing:

(a)  how much of the subject debt is for work done or for materials supplied, and

(b)  whether the subject debt consists of daily, weekly or monthly wages, and

(c)  if the subject debt consists of daily, weekly or monthly wages, whether the subject debt exceeds 120 days’ wages, and

(d)  if the subject debt consists of daily, weekly or monthly wages and exceeds 120 days’ wages, that the amount to be certified in the certificate does not exceed 120 days’ wages, and

(e)  whether work resulting in the subject debt was done on something moveable, and

(f)  if the work resulting in the subject debt was done on something moveable, whether it would be practicable for the applicant to exercise a lien by retaining possession of the thing.

(4)  Unless the court otherwise orders, the applicant may proceed without service of the notice of motion on any person.

(5)  The notice of motion may be dealt with by the court in the absence of the public and without any attendance by or on behalf of any person.

2 Application: section 14 (1)

On an application under section 14 (1) of the Act, the applicant may, unless the court otherwise orders, proceed without service of the relevant notice of motion on any person.

Conveyancing Act 1919

1 Prescribed officer: section 66G (5) (b)

For the purposes of section 66G (5) (b) of the Act, the Registrar in Equity is a prescribed officer of the Supreme Court.

2 Prescribed officer: section 98 (1F)

For the purposes of section 98 (1F) of the Act, the Registrar in Equity is a prescribed officer of the Supreme Court.

Co-operative Housing and Starr-Bowkett Societies Act 1998

Application of Supreme Court (Corporations) Rules 1999

The provisions of the Supreme Court (Corporations) Rules 1999 relating to applications under the Corporations Act 2001 of the Commonwealth, so far as applicable and making such changes as it is necessary to make, apply to applications under the Act.

Co-operatives Act 1992

Application of other rules of court

(1)  The provisions of the Supreme Court (Corporations) Rules 1999 relating to applications under the Corporations Act 2001 of the Commonwealth, so far as applicable and making such changes as it is necessary to make, apply to:

(a)  proceedings under the Act commenced in the Supreme Court after those rules commence, and

(b)  applications made under the Act in those proceedings.

(2)  The provisions of Part 80A of the Supreme Court Rules 1970 relating to applications under the Corporations Law, so far as applicable and making such changes as it is necessary to make, apply to:

(a)  proceedings under the Act commenced in the Supreme Court after 31 March 1994 and before the Supreme Court (Corporations) Rules 1999 commence, and

(b)  applications made under the Act after 31 March 1994 in proceedings in the Supreme Court commenced before the Supreme Court (Corporations) Rules 1999 commence.

(3)  The provisions of Part 80 of the Supreme Court Rules 1970 relating to applications under the Companies Code and under the Corporations Law, so far as applicable and making such changes as it is necessary to make, apply to all other proceedings commenced and applications made under the Act.

Criminal Assets Recovery Act 1990

1 Statement in application for order

The applicant for an order under the Act must file with the summons a statement in summary form of the general nature of the facts and circumstances relied on.

2 Prescribed officer: section 12

For the purposes of section 12 (1) (b) and (b1) of the Act, a registrar is a prescribed officer of the Supreme Court.

3 Information for production order

An information setting out the grounds referred to in section 33 (1), 44 or 48 (1) of the Act may be laid before the Supreme Court by filing an affidavit setting out those grounds.

Electricity Supply Act 1995

Service of certificate

The Minister must, as soon as practicable, file and serve on all active parties any certificate made pursuant to section 95 (3) of the Act.

Federal Courts (State Jurisdiction) Act 1999

1 Definitions

In these clauses, ineffective judgment and relevant order have the same meanings as they have in the Act.

2 Application for order under section 7

A person seeking the aid of the Supreme Court in respect of a right or liability to which section 7 of the Act applies, otherwise than in respect of an appeal:

(a)  must commence proceedings in the Division of the Supreme Court to which the proceedings in which the ineffective judgment was given would have been assigned if they had been commenced in the Court, and

(b)  must join as defendants all persons whose interests may be affected by the application.

3 Application for order under section 10

An applicant for an order under section 10 of the Act:

(a)  must commence proceedings for the order in the Division of the Supreme Court to which the proceedings in which the ineffective judgment was given would have been assigned if they had been commenced in the Supreme Court, and

(b)  must join as defendants all other parties to the proceedings in which the ineffective judgment was given.

4 Application for order under section 11 (2)

(1)  In this clause:

relevant proceedings means the proceedings in which a relevant order has been made.

section 11 order means an order under section 11 (2) of the Act.

(2)  An applicant for a section 11 order:

(a)  must commence proceedings for the order:

(i)  in the Division of the Supreme Court to which the proceedings in which the relevant order was made would have been assigned if they had been commenced in the Supreme Court, or

(ii)  in the Court of Appeal if the proceedings in which the relevant order was made would have been assigned to the Court of Appeal had the proceedings been commenced in the Supreme Court, and

(b)  must join as defendants all other parties to the relevant proceedings.

(3)  If a section 11 order is made subject to any order of the Supreme Court:

(a)  the registrar or clerk of the court in which the relevant proceedings were brought must send the record of the proceedings to the Supreme Court, and

(b)  the Supreme Court must proceed as if:

(i)  the relevant proceedings had been originally commenced in the Supreme Court, and

(ii)  the same steps had been taken in the Supreme Court as have been taken in any other court in which the relevant proceedings have at any time been pending, and

(iii)  any order made by any other court in which the relevant proceedings have at any time been pending had been made by the Supreme Court.

(4)  Within 28 days of the order being made, the plaintiff must move the Supreme Court for directions.

Gas Supply Act 1996

Service of certificate

The Minister must file and serve on all active parties any certificate made pursuant to section 17 (3) of the Act.

Motor Accidents Act 1988

1 Statement of claim (cf DCR Part 24C, rule 2)

(1)  The statement of claim must specify the date on which the accident to which the proceedings relate occurred.

(2)  A document must be filed with the statement of claim, being a document that includes:

(a)  a statement that the accident was reported in compliance with section 42 of the Act, or an indication of what explanation will be offered to the court for non-compliance, and

(b)  a statement to the effect that a claim was made in respect of the accident in compliance with section 43 of the Act, or an indication of what explanation will be, or has been, provided under section 43A of the Act, and

(c)  if the proceedings are commenced before the time prescribed by section 52 (1A) of the Act, a statement of the grounds on which the plaintiff relies as referred to in section 52 (2) of the Act, and

(d)  if the proceedings are commenced after the time prescribed by section 52 (4) of the Act, a statement that the court has granted leave as referred to in that subsection.

2 Service of statement of claim (cf DCR Part 24C, rule 3)

(1)  The statement of claim must be served on both the defendant and the defendant’s insurer.

(2)  Service of the statement of claim may be effected as though it were a notice or other document referred to in section 133 of the Act.

(3)  The requirement in subclause (1) for service on the defendant’s insurer is satisfied by service:

(a)  if the defendant is the Nominal Defendant under the Act, on the Nominal Defendant, or

(b)  if the defendant is an insured person for the purposes of the Act, on the defendant’s third party insurer, or

(c)  if the defendant is insured, in respect of the liability alleged in the proceedings, under a policy issued elsewhere than in New South Wales, on the insurer who issued the policy.

3 Non-compliance with Act (cf DCR Part 24C, rule 8)

A notice of motion by the defendant to dismiss the proceedings on the ground that:

(a)  the accident the subject of the proceedings was not reported in compliance with section 42 of the Act, or

(b)  the proceedings were commenced outside the time limited by section 52 of the Act,

must be filed no later than 2 months after service of the statement of claim on the defendant’s insurer.

4 Examination: section 66A (cf SCR Schedule J)

(1)  Unless the court otherwise orders, the following applications to the court must be made by notice of motion:

(a)  an application under section 66A (1) of the Motor Accidents Act 1988,

(b)  an application for leave under section 66A (3) or (4) of that Act.

(2)  Unless the court otherwise orders, the notice of motion must be filed no later than 6 weeks before the date fixed for the trial of the proceedings.

(3)  Unless the court otherwise orders, the notice of motion must be served on all parties to the proceedings (other than the applicant) and on such other persons as the court directs.

(4)  If the court is satisfied that an insurer has not made out its allegation that a claim has not been made in good faith, the court may if it thinks fit order the insurer to pay the costs of the whole or any specified part of the proceedings incurred by any owner or driver or any witness whom the insurer has sought leave to examine or cross-examine.

Motor Accidents Compensation Act 1999

1 Statement of claim (cf DCR Part 24C, rule 11)

(1)  The statement of claim must specify the date on which the accident to which the proceedings relate occurred.

(2)  A document must be filed with the statement of claim, being a document that includes:

(a)  a statement that the accident was reported in compliance with section 70 of the Act, or an indication of what explanation will be offered to the court for non-compliance, and

(b)  a statement to the effect that a claim was made in respect of the accident in compliance with section 72 of the Act, or an indication of what explanation will be, or has been, provided under section 73 of the Act, and

(c)  a statement that a certificate in respect of the claim has been issued under section 92 or 94 of the Act and as to the provision under which that certificate was issued, and

(d)  if the proceedings are commenced after the time prescribed by section 109 of the Act, a statement that the court has granted leave as referred to in that section.

2 Service of statement of claim (cf DCR Part 24C, rule 12)

(1)  The statement of claim must be served on the defendant and, if the defendant’s insurer is a third-party insurer within the meaning of the Act, on the defendant’s insurer.

(2)  Service of the statement of claim may be effected as though it were a notice or other document referred to in section 222 of the Act.

(3)  The requirement in subclause (1) for service on the defendant’s insurer is satisfied by service:

(a)  if the defendant is the Nominal Defendant under the Act, on the Nominal Defendant, or

(b)  if the defendant is insured, in respect of the liability alleged in the proceedings, under a policy issued elsewhere than in New South Wales, on the insurer who issued the policy.

3 Non-compliance with Act (cf DCR Part 24C, rule 8)

A notice of motion by the defendant to dismiss the proceedings on the ground that:

(a)  the accident the subject of the proceedings was not reported in compliance with section 70 of the Act, or

(b)  the proceedings were commenced outside the time limited by section 109 of the Act,

must be filed no later than 2 months after service of the statement of claim on the defendant’s insurer.

4 Examination: section 119 (cf SCR Schedule J)

(1)  The following applications to the court must be made by notice of motion:

(a)  an application under section 119 (1) of the Act,

(b)  an application for leave under section 119 (3) or (4) of the Act.

(2)  Unless the court otherwise orders, the notice of motion must be filed no later than 6 weeks before the date fixed for the trial of the proceedings.

(3)  Unless the court otherwise orders, the notice of motion must be served on all parties to the proceedings (other than the applicant) and on such other persons as the court directs.

(4)  If the court is satisfied that an insurer has not made out its allegation that a claim has not been made in good faith, the court may if it thinks fit order the insurer to pay the costs of the whole or any specified part of the proceedings incurred by any owner or driver or any witness whom the insurer has sought leave to examine or cross-examine.

New South Wales Crime Commission Act 1985

Review of decision

(1)  For the purposes of section 19 of the Act, the appropriate officer is the Prothonotary.

(2)  For the purposes of section 19 of the Act, the appropriate Registry is the Registry of the Common Law Division of the Supreme Court.

Offshore Minerals Act 1999

Commencement of proceedings under section 354

Proceedings for an order under section 354 (1) of the Act must join as defendants both the Minister and each person who is directly affected by the relief sought in the proceedings.

Professional Standards Act 1994

Commencement of proceedings

(1)  An application for an order under section 15 of the Act in respect of a scheme must join as a defendant the occupational association on whose application the scheme was approved by the Professional Standards Council.

(2)  Within one day of commencing proceedings, the plaintiff must lodge a copy of the summons at the office of the Professional Standards Council.

Public Health Act 1991

1 Definitions

In these clauses:

Director-General means the Director-General, Department of Health.

medical practitioner means the medical practitioner on whom it is sought, by the order applied for in a section 18 application, to serve a notice under section 19 of the Act.

person concerned means the person whose name and address would be required to be supplied if the District Court made the order sought in the section 18 application.

section 18 application means an application under section 18 of the Act.

2 Section 18 applications

(1)  The summons must join the medical practitioner as a defendant.

(2)  A document must be filed with the summons, being a document that includes:

(a)  particulars of the grounds on which the Director-General applies for the order sought, or a reference to the affidavit in which those particulars are contained, and

(b)  a notice to the medical practitioner explaining the requirement imposed on him or her by clause 3, and

(c)  a notice to the person concerned explaining the person’s right to be heard in reply to the summons, in a closed court, without the person’s name or address being publicly disclosed.

3 Medical practitioner to advise registrar

(1)  A medical practitioner on whom the summons is served must as soon as practicable (and in any case not later than 7 days after service) advise the registrar, by letter, facsimile, email or telephone, of the name and address of the person concerned, so far as that name and address are known to the medical practitioner.

(2)  After a medical practitioner has complied with the requirements of subclause (1), the medical practitioner need take no further part in the proceedings on the section 18 application other than to comply with any notice authorised by the District Court to be served on him or her.

(3)  If a medical practitioner fails to comply with the requirements of subclause (1) and the Director-General files an affidavit of service of the summons on the medical practitioner, the District Court may proceed to hear and determine the section 18 application even though clause 4 has not been complied with if it thinks fit to do so.

4 Registrar to advise person concerned

(1)  The registrar must as soon as practicable after receiving advice under clause 3 (1) send a sealed copy of the summons, together with a copy of the document referred to in clause 2 (2), by post addressed to the name and address advised to the registrar under that subclause.

(2)  The registrar must, when sending a copy under subclause (1), enclose the copy in an envelope endorsed with the return address of the registrar and marked “Confidential”.

Restricted Premises Act 1943

Application for declaration: section 3 (1)

The Supreme Court or the District Court may make a declaration under section 3 (1) of the Act even if the summons has not been served on the owner or occupier of the premises.

Retirement Villages Act 1999

Consent of administrator

In proceedings for an order under section 84 of the Act, the plaintiff:

(a)  must file the consent referred to in section 85 of the Act with the summons, and

(b)  must serve the consent with the summons.

Status of Children Act 1996

1 Parentage testing procedure: service of notice of motion on non-party

Unless the Supreme Court otherwise orders, a notice of motion seeking an order under section 26 of the Act that requires a parentage testing procedure to be carried out on a person who is not a party to the proceedings must be served personally on that person.

2 Service of notice of motion on person under legal incapacity

If:

(a)  a notice of motion for an order requiring a parentage testing procedure to be carried out on a person is to be served personally on a person under legal incapacity, and

(b)  the person served under rule 10.12 does not appear to have the care and control of the person under legal incapacity,

then, unless the Supreme Court otherwise orders, the notice of motion must also be served personally both on the person who appears to have that care and control and on such other person as the Court may direct.

3 Service of order on person under legal incapacity

If:

(a)  an order under section 26 (1) of the Act is to be served on a person under legal incapacity, and

(b)  the person served is not the person having the care and control of the person under legal incapacity,

then, unless the Supreme Court otherwise orders, the order must also be served personally both on the person having that care and control and on such other person as the Court may direct.

4 Service of report

On receipt of a report prepared in accordance with the regulations under the Act in relation to the results of a parentage testing procedure, the registrar must send a copy of the report:

(a)  to the parties to the proceedings, and

(b)  to any person (not being a party to the proceedings) from whom the taking of bodily samples was directed.

Strata Schemes (Freehold Development) Act 1973

1 Commencement of proceedings

In any proceedings under section 32 (1), 50 (1) or 51 (1) of the Act, the persons referred to in section 32 (2), 50 (2) or 51 (2) of the Act, respectively, must be joined as defendants.

2 Service of notice

Notice under section 32 (2), 50 (2) or 51 (2) of the Act is served by serving the summons.

Strata Schemes (Leasehold Development) Act 1986

1 Commencement of proceedings

In any proceedings under section 37 (4), 61 (1), 79 (1) or 80 (1) of the Act, the persons referred to in section 37 (5), 61 (2), 79 (2) or 80 (3) of the Act, respectively, must be joined as defendants.

2 Service of notice

Notice under section 37 (5) or (8), 61 (2), 79 (2) or 80 (3) of the Act is served by serving the summons.

Taxation Administration Act 1996

Evidence of jurisdiction

(1)  The plaintiff in proceedings seeking a review under section 97 of the Act must file an affidavit specifying:

(a)  that the application is made under section 97 (1) (a) of the Act, or

(b)  that:

(i)  the application is made under section 97 (1) (b) of the Act, and

(ii)  the application is not in breach of the time prescribed by section 97 (1) (b) of the Act, and

(iii)  section 100 (1) of the Act has been complied with.

(2)  The affidavit must also must show that the application is not in breach of section 97 (2) of the Act.

Victims Support and Rehabilitation Act 1996

1 Statement in application

The plaintiff in proceedings for an order under the Act must file with the summons a statement in summary form of the general nature of the facts and circumstances relied on.

2 Prescribed officer: section 58H (2) (a)

For the purposes of section 58H (2) (a) of the Act, a registrar of the Supreme Court is a prescribed officer.

Witness Protection Act 1995

Section 19 (2) and 34 (2) applications

The plaintiff in proceedings for an order under section 19 (2) or 34 (2) of the Act must join as a defendant the person against whom the order is sought.

Part 2 Commonwealth legislation

Crimes (Superannuation Benefits) Act 1989

Statement in application

The plaintiff in proceedings for an order under the Act must file with the summons a statement in summary form of the facts and circumstances relied on.

International War Crimes Tribunals Act 1995

Registration: section 45

(1)  The plaintiff in proceedings for registration of an order to which section 45 (1) of the Act applies must join as a defendant the person against whom the order was made.

(2)  Unless the Supreme Court otherwise orders, the plaintiff may proceed without service of the summons on the defendant.

(3)  If the plaintiff adds to the application a request that the application be granted under this subclause, the Supreme Court may make the order in the absence of the public and without any attendance by or on behalf of the plaintiff.

(4)  The plaintiff must file with the summons an affidavit setting out such particulars as are necessary to enable the Supreme Court to comply with section 45 (1) of the Act.

(5)  If an order is made under section 45 (1) of the Act for registration of an order, the plaintiff must serve on the defendant both the registered order and the order for registration.

Offshore Minerals Act 1994

Commencement of proceedings under section 354

The plaintiff in proceedings for an order under section 354 (1) of the Act must join as defendants both the Designated Authority and each person who is directly affected by the relief sought in the proceedings.

Proceeds of Crime Act 1987

1 Statement in application

The plaintiff in proceedings for an order under the Act must file with the summons a statement in summary form of the facts and circumstances relied on.

2 Information for production order or search warrant: sections 66 (1) and 71 (1)

An information setting out the grounds referred to in section 66 (1) or 71 (1) of the Act may be laid before the Supreme Court by filing an affidavit setting out those grounds.

Retirement Savings Accounts Act 1997

1 Application by Regulator: section 119 (3)

(1)  A certificate under section 119 (2) of the Act must be filed with the summons commencing proceedings for an inquiry or order under section 119 (3) of the Act.

(2)  The summons commencing proceedings for an inquiry or order under section 119 (3) of the Act must join as a defendant the person who is the subject of the certificate.

2 Notice of certain applications to be given to Regulator

Unless the Supreme Court otherwise orders, a person seeking an order under section 158 (1) or (4) or 160 (5) of the Act must, as soon as practicable after filing the summons or notice of motion, serve a copy of it and its supporting affidavit on the Regulator.

3 Intervention by Regulator

(1)  The Regulator may intervene under section 168 of the Act by filing a notice of appearance that includes a statement that the Regulator intervenes under that section.

(2)  On complying with subclause (1), the Regulator must be added as a defendant.

sch 10: Ins 2008 (338), Sch 1 [24].

Schedule 11 Provisions regarding procedure in certain lists in the District Court

(Rule 1.27)

Part 1 Preliminary

1 Definitions

In this Schedule:

coal miner means a worker employed in or about a mine to which the Coal Mine Health and Safety Act 2002 applies.

coal miner’s claim means a claim for compensation pursuant to the Workers Compensation Acts in respect of any injury received by a coal miner.

compensation includes any monetary benefit under the Workers Compensation Acts or a Special Statutory Compensation Act.

conciliator means a District Court conciliator being an officer or employee of the Court nominated by the registrar to carry out conciliation in connection with a coal miner’s claim.

registrar means registrar of the District Court.

Special Statutory Compensation Act means the Police Act 1990, the Police Regulation (Superannuation) Act 1906, the Sporting Injuries Insurance Act 1978, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and the Workers’ Compensation (Dust Diseases) Act 1942.

special statutory compensation claim means a claim for compensation pursuant to a Special Statutory Compensation Act.

the 1926 Act means the Workers’ Compensation Act 1926.

the 1987 Act means the Workers Compensation Act 1987.

the 1998 Act means the Workplace Injury Management and Workers Compensation Act 1998.

WorkCover Authority means the WorkCover Authority constituted under the 1998 Act.

Workers Compensation Acts means the 1926 Act, the 1987 Act and the 1998 Act.

Part 2 Coal Miners’ Workers Compensation List

Division 1 Proceedings generally

2 Proceedings under the Workers Compensation Acts (cf DCR Part 24D, rule 1)

(1)  In this Part:

List means the Coal Miners’ Workers Compensation List.

proceedings under the Acts means proceedings commenced under the Workers Compensation Acts.

(2)  This Division applies to proceedings under the Acts whether commenced in the District Court or transferred from the Compensation Court.

(3)  Where there is an inconsistency in the operation of these rules and the provisions of this Division, the provisions of this Division shall apply.

3 Commencement of proceedings (cf DCR Part 24D, rule 1A)

Subject to these rules, proceedings under the Acts must be commenced by statement of claim.

4 Coal Miners’ Workers Compensation List (cf DCR Part 24D, rule 2)

(1)  The registrar for Sydney and the registrar for Newcastle shall each maintain a Coal Miners’ Workers Compensation List and shall enter in that List any proceedings under the Acts as soon as the proceedings are commenced or transferred under section 7 (1) (a) of the Compensation Court Repeal Act 2002.

(2)  The statement of claim in proceedings under the Acts shall bear in the heading the words “Coal Miners’ Workers Compensation List”, and shall be in the approved form.

(3)  A summons in proceedings under the Acts shall bear in the heading the words “Coal Miners’ Workers Compensation List”, and shall be in the approved form.

(4)  If a statement of claim or a summons in proceedings under the Acts is lodged with a registrar for a proclaimed place other than Sydney or Newcastle, the registrar at that other place shall forward the statement of claim or summons to the registrar for Sydney or Newcastle, whichever appears the most expedient, for filing and entry in the List maintained by that registrar.

(5)  Proceedings under the Acts, and any ancillary proceedings, may be set down for hearing at any proper place.

5 Functions of the registrar (cf DCR Part 24D, rule 3)

A conciliator has and may exercise all the functions of the registrar for Sydney in respect of proceedings in the Coal Miners’ Workers Compensation List.

6 Compliance with statutory restrictions on commencement of proceedings under the 1998 Act (cf DCR Part 24D, rule 4)

(1)  This clause is made pursuant to section 104 of the 1998 Act.

(2)  This clause applies to claims for compensation referred to in sections 101, 102 and 103 of the 1998 Act, as modified by clauses 235, 236 and 237 respectively of the Workers Compensation Regulation 2003.

(3)  A party seeking to commence any proceedings in respect of any such claim shall file with the initiating process a certificate of compliance in the form stipulated by subclause (5) certifying that the commencement of such proceedings is not contrary to the provisions of section 101, 102 or 103 of the 1998 Act, as modified by clauses 235, 236 and 237 respectively of the Workers Compensation Regulation 2003, as the case may be.

(4)  Any initiating process not accompanied by such appropriate certificate shall not be accepted for filing.

(5)  Such certificate of compliance shall be in or to the effect of the approved form or such portion or portions thereof as may be relevant to the particular matter.

(6)  Where, leave of the District Court having been previously obtained, a party seeks to file an amended statement of claim adding an additional party or parties to the current proceedings then the provisions of this clause apply with all necessary modifications in respect of the proposed application against such added party or parties.

7 Particular proceedings commenced by summons (cf DCR Part 24D, rule 5)

(1)  The following proceedings shall be commenced by summons where no proceedings have been commenced in relation to the subject matter in dispute:

(a)  for an order for costs pursuant to section 112 of the 1998 Act,

(b)  for an order for refund of weekly payments pursuant to section 58 of the 1987 Act,

(c)  for apportionment between dependants pursuant to section 29 of the 1987 Act or for variation of any previous apportionment pursuant to section 30 of the 1987 Act,

(d)  where liability has been admitted, for an order for payment in respect of dependent children pursuant to section 31 of the 1987 Act,

(e)  for variation in the manner in which the NSW Trustee and Guardian invests, applies, pays out or otherwise deals with money paid to the NSW Trustee and Guardian pursuant to section 85 of the 1987 Act. The NSW Trustee and Guardian shall be made a respondent to any such application,

(f)  for any order, direction or authorization in respect of the payment of compensation pursuant to sections 83, 85 and 85A of the 1987 Act,

(g)  for suspension of a weekly payment, or for a declaration that a worker’s right to take or prosecute any proceedings under the 1998 Act has been suspended, until, pursuant to section 120 of that Act, the worker submits to medical examination,

(h)  for an order under section 53 of the 1987 Act,

(i)  for an order in respect of an objection to a reference to a medical referee or medical panel pursuant to Part 3,

(j)  for a determination under section 224 (1) or 225 (3) of the 1998 Act, as saved by clause 3 (1) of Part 18 of Schedule 6 to the 1987 Act, in respect of the Uninsured Liability and Indemnity Scheme.

(2)  Where proceedings are pending in relation to the subject matter of any application referred to in subclause (1), such application shall be made by notice of motion in the proceedings.

8 Affidavits in support of summons under section 53 of the 1987 Act (cf DCR Part 24D, rule 6)

(1)  A summons for an order pursuant to clause 7 (1) (h) shall be supported by affidavits by the worker and a medical practitioner who has examined the worker.

(2)  The affidavits referred to in subclause (1) shall verify:

(a)  the circumstances in which the application is made,

(b)  the age and a description of the applicant sufficient to identify him or her,

(c)  particulars as to the injury, the nature and extent of the incapacity resulting from the injury, and the history and treatment of the worker since the injury,

(d)  the amount and duration of the weekly payment,

(e)  the worker’s present and proposed places of residence, and

(f)  the detail of any award or previous proceedings in respect of the injury.

9 Applications for contribution, indemnity or apportionment (cf DCR Part 24D, rule 7)

(1)  The following applications shall be made by notice of motion where proceedings are pending in relation to the subject matter of the application:

(a)  for contribution subject to section 15, 16 or 17 of the 1987 Act,

(b)  for indemnification pursuant to section 20 of the 1987 Act,

(c)  for apportionment pursuant to section 22 or 22A of the 1987 Act,

(d)  for a determination pursuant to section 22B of the 1987 Act.

(2)  Where there are no proceedings in relation to the subject matter of an application under subclause (1), proceedings shall be commenced by statement of claim.

10 Application for further medical expenses etc (cf DCR Part 24D, rule 8)

Where a worker who has commenced proceedings for compensation seeks to apply for a direction under section 62 (6A) of the 1987 Act he or she may so apply by notice of motion in the proceedings.

11 Application for suspension of weekly payment (cf DCR Part 24D, rule 9)

An application for an order for suspension of a weekly payment, or for a declaration that a worker’s right to take or prosecute any proceedings under the 1998 Act, has been suspended, until, pursuant to section 120 of that Act, the worker submits to medical examination may be made, where proceedings have been commenced in respect of the subject matter to which the weekly payment relates, by notice of motion.

12 Uninsured Liability and Indemnity Scheme (cf DCR Part 24D, rule 10)

(1)  The WorkCover Authority shall be a necessary party to any application under section 224 (1) or 225 (3) of the 1998 Act, as saved by clause 3 (1) of Part 18 of Schedule 6 to the 1987 Act.

(2)  Where a matter or question for determination by the District Court under the Uninsured Liability and Indemnity Scheme is already the subject of proceedings, proceedings to determine the matter or question may be made by notice of motion in the proceedings.

13 Applications in the case of death of worker (cf DCR Part 24D, rule 11)

(1)  In proceedings for the benefit of dependants in the case of the death of a worker pursuant to the 1987 Act and the 1998 Act, the following persons shall be joined as defendants:

(a)  the personal representative (if any) of the worker, if that personal representative is not already an applicant,

(b)  if the proceedings are brought by or on behalf of some only of the dependants, the other dependants,

(c)  any other person claiming to be a dependant.

(2)  Where an injured worker dies leaving no dependants, proceedings to recover reasonable burial or cremation expenses pursuant to section 27 of the 1987 Act may be continued:

(a)  by the personal representative of the worker, or

(b)  by any person to whom any such expenses are due or who has paid any such expenses.

(3)  In proceedings brought under subclause (2) (b):

(a)  the personal representative (if any) of the worker, and any person referred to in subclause (2) (b) who has not been joined as an applicant, shall be joined as a defendant,

(b)  if the amount awarded is insufficient to meet the expenses sought to be recovered, the District Court may give directions for the apportionment of that amount.

14 Service on insurer (cf DCR Part 24D, rule 12)

Where any insurer of a defendant is named in an originating process, a copy of that originating process shall be served on any such insurer as well as on the defendant.

15 Service on WorkCover Authority (cf DCR Part 24D, rule 13)

Service on the WorkCover Authority may be effected by delivering a copy to an officer of the Authority at Legal Group, WorkCover, Level 1, 60–70 Elizabeth Street, Sydney, or by sending a copy by post addressed to the Authority, at GPO Box 2677 Sydney NSW 2001, or by leaving a copy, addressed to the Authority, in the Authority’s exchange box in a document exchange of Australian Document Exchange Pty Limited, or at another exchange box for transmission to that exchange box.

16 Submission to award (cf DCR Part 24D, rule 14)

(1)  An employer who is a party to proceedings for an award of compensation or for determination of any question as to the employer’s liability to pay compensation may, at any stage of the proceedings, and whether or not the employer admits any liability to pay compensation, file and serve a notice stating that the employer is willing to submit to an award of compensation in the terms set out in the notice.

(2)  If the worker who is a party, or the dependants who are parties, to the proceedings file and serve notice of his, her or their willingness to accept the award as set out in the notice given under subclause (1), the registrar shall cause the proceedings to be listed before the District Court, and the District Court may make such award or give such directions as to it may appear proper.

(3)  If notice under subclause (2) is not filed and served within 28 days after the service of notice under subclause (1) the proceedings shall be continued as though the notice under subclause (1) had not been filed.

(4)  If proceedings are continued under subclause (3), before the record of the proceedings is brought before the District Court for any hearing of the proceedings, the registrar shall seal within the record the notice filed under subclause (1) and any information contained in the record in respect of that notice, but the District Court need not disqualify itself from hearing the proceedings only because it becomes aware in any manner of the notice or of any such information.

17 Offer of compromise (cf DCR Part 24D, rule 15)

The provisions of Division 4 of Part 20 do not have application to proceedings entered in the Coal Miners’ Workers Compensation List.

18 Schedule of earnings (cf DCR Part 24D, rule 16)

In any statement of claim where the quantum of weekly compensation is or may be an issue and there is or may be a dispute in respect of the actual or probable earnings of a worker during any relevant period the following provisions shall, unless the District Court otherwise orders, have effect:

(a)  the plaintiff shall file and serve on each other party not later than 10 days before conciliation of a coal miner’s claim or, where there is no conciliation, 21 days before the hearing date, a schedule containing full particulars of such earnings during such period,

(b)  if any party disputes the accuracy of any matter in the schedule that party shall, not later than 7 days after service of the schedule or 28 days after expiry of the time prescribed for filing a statement of defence pursuant to rule 14.3, whichever is the later, file and serve a schedule containing its allegations of such earnings,

(c)  a matter not so disputed shall be deemed to be admitted.

19 Proceedings deemed dismissed (cf DCR Part 24D, rule 17)

(1)  Where in respect of any proceedings on a claim for compensation:

(a)  a defendant has not filed a notice of appearance or notice of defence, and

(b)  the plaintiff has not filed an affidavit of service of the originating process on that defendant,

within 3 months after the date of commencement of the proceedings, the proceedings as against that defendant are deemed to have been dismissed, and no further step may be taken in those proceedings other than an application referred to in subclause (3) until the proceedings have been restored to the list.

(2)  Where proceedings which have not been heard, part heard or discontinued, and in which a preliminary advice of hearing or notice of call-over has been issued, have not been before the District Court during any period of 6 months, the proceedings are, unless the District Court otherwise orders, deemed to have been dismissed.

(3)  The Court may, on application by a party and on terms, restore to the list any proceedings deemed to have been dismissed under subclauses (1) and (2).

20 Dismissal of proceedings (cf DCR Part 24D, rule 18)

(1)  The Court may if it thinks fit dismiss any proceedings at any time on terms and without affecting the generality of the foregoing provisions of this clause, the District Court may dismiss any proceedings if:

(a)  no party appears, or

(b)  a defendant does, but the plaintiff does not, appear.

(2)  Where proceedings are dismissed under subclause (1) the District Court may, on the application of any party, order that the proceedings be reinstated on terms, and without affecting the generality of the foregoing provisions of this subclause, the proceedings may be reinstated upon such terms and conditions as to costs and the priority of the hearing of the proceedings as the District Court thinks fit.

(3)  Subclause (2) applies except where otherwise provided in section 112 of the 1998 Act.

21 Medical examination (cf DCR Part 24D, rule 19)

(1)  Except by leave of the District Court, which may be given on terms, or consent of the worker, a notice shall not be given under rule 23.2 requesting that a worker submit to examination:

(a)  by a medical expert specialising in a particular field of practice if the worker has already been examined, at the request of the party giving the notice, by another medical expert specializing in that field, or

(b)  by the one medical expert:

(i)  more than twice in respect of the one proceedings, or

(ii)  at intervals of less than 2 months.

(2)  An examination to which the worker submits himself or herself for the purposes of section 119 of the 1998 Act is not an examination by a medical expert for the purposes of subclause (1).

22 Expert evidence and hospital reports (cf DCR Part 24D, rule 20)

(1)  In this clause expert’s report and hospital report have the same meaning as in rule 31.18 and party includes any person who has filed a notice of appearance or notice of grounds of defence.

(2)  This clause applies in respect of any proceedings subject to the Evidence Act 1995, the Workers Compensation Acts and any regulations made thereunder and to any orders of the District Court or agreement between the parties not inconsistent with such Acts or regulations.

(3)  Primary expert’s reports must be served by each party in any proceedings prior to conciliation and any reports in reply or refresher reports must be served not later than 28 days before the hearing.

(4)  Where an expert’s report is served in accordance with subclause (3), or an order is made under subclause (2), the report is admissible, without further evidence, oral or otherwise, as evidence of the expert’s opinion and, where the expert’s direct oral evidence of a fact upon which the opinion was formed would be admissible, as evidence of that fact.

(5)  Except where otherwise provided in the Workers Compensation Acts, and unless the District Court otherwise orders, a party may require the attendance for cross examination of the expert.

(6)  A party who requires the attendance of a person under subclause (5) shall procure that attendance, and, whether the party procures the attendance by the issue and service of a subpoena or otherwise, the person shall not thereby become the party’s witness except for the purpose of determining any liability for conduct money or witness’ expenses.

(7)  A party who requires the attendance of a person as referred to in subclause (6) shall as soon as practicable inform all other parties to the proceedings that he or she has done so.

(8)  Where a person who has made a report is cross-examined, the party tendering the report may re-examine that person.

(9)  Where a hospital report is served in accordance with subclause (3) or an order is made under subclause (2), the report is admissible.

(10)  In reckoning the period of 28 days referred to in subclause (3):

(a)  any day on which the matter is listed for hearing shall not be counted, and

(b)  where the hearing is not on consecutive days, any period of less than 28 days between hearing days shall not be counted.

(11)  Where a party has been served with an expert’s report or a hospital report by another party and the first party seeks to rely on such report, it shall not be necessary to serve a copy of that report on the party who served it but the first party shall give notice of intention to rely on the report to the party who served it and to each other party in the proceedings, within the time prescribed by subclause (3).

23 Discontinuance (cf DCR Part 24D, rule 22)

(1)  A party may discontinue proceedings so far as concerns the whole or any part of any claim made by him or her:

(a)  if no preliminary advice of hearing has been issued in the proceedings—without leave of the District Court or consent of any other party, or

(b)  after a preliminary advice of hearing has been issued in the proceedings—with the consent of all other parties or by leave of the District Court.

(2)  Application for the leave of the District Court as referred to in subclause (1) (b) may be made:

(a)  if made on not less than 3 days’ notice to all other parties at a time when the proceedings are before the District Court for another purpose—orally, or

(b)  if made otherwise—by motion.

24 Settling of awards (cf DCR Part 24D, rule 23)

(1)  Where the District Court gives a decision or makes a final order disposing of any proceedings in the Coal Miners’ Workers Compensation List, the registrar shall as soon as convenient prepare and settle a form of award engrossing the decision or order.

(2)  The registrar shall sign and seal any form of award settled by the registrar, and as soon as practicable cause a copy to be forwarded to each party, and any insurer of a respondent, to the proceedings.

Division 2 Conciliation of coal miners’ claims

25 Referral (cf DCR Part 24D, rule 24)

The registrar shall, not later than 3 months after the filing of a statement of claim in respect of a coal miner’s claim, or at such earlier time as the parties may request, refer the matter to a conciliator for conciliation.

26 General powers of a conciliator (cf DCR Part 24D, rule 25)

(1)  Without limiting the powers of a conciliator pursuant to Divisions 3 and 4 of Part 2 of Chapter 4 of the 1998 Act, a conciliator may:

(a)  make a recommendation to parties prior to conciliation, and

(b)  determine whether to hold a conference or return the matter to the registrar, and

(c)  direct the production of any document by any party to proceedings, and

(d)  generally control any proceedings before the conciliator, and

(e)  do such other things as the rules specifically provide or the District Court otherwise directs.

(2)  The conciliator may, if the conciliator thinks fit, on terms dispense with compliance with any of the requirements of this Part, either before or after the occasion for the compliance arises.

27 Directions (cf DCR Part 24D, rule 26)

Without limiting the powers of a conciliator to give directions, a conciliator may give directions relating to preparation for and the conduct of the conciliation conference including:

(a)  a direction to a party to provide any other party or the conciliator with further particulars of any allegation or claim made in the proceedings, and

(b)  a direction to a party to lodge further documents with the conciliator, and

(c)  a direction to a party to make available to any other party a copy of a specified document (not being a document that is privileged from production), and

(d)  a direction revoking or varying any direction made at a conciliation conference.

28 Conciliation conference procedure (cf DCR Part 24D, rule 27)

(1)  Unless the conciliator otherwise directs, a conciliation conference shall be attended by:

(a)  subject to paragraph (b), each party or, where a party is a company, an officer of the company having authority to settle the proceedings, or

(b)  if the conduct of the proceedings by a party is controlled by an insurer, an officer of the insurer having authority to settle the proceedings.

(2)  A party may be accompanied at the conciliation conference by a barrister or solicitor retained by or on behalf of the party.

(3)  A conciliator may from time to time adjourn the conciliation of a dispute which the conciliator has commenced to conduct.

(4)  A conciliator must not adjourn a matter beyond 35 days from the date of first notification of the conciliation conference, except with the consent of the parties.

(5)  A matter shall not be adjourned beyond 90 days from the date of first notification of the conciliation conference except by leave of the District Court.

29 Conduct of a conciliation conference (cf DCR Part 24D, rule 28)

A conciliation conference shall be conducted:

(a)  following reasonable notice to the parties, and

(b)  as a structured process in which the conciliator endeavours to assist the parties to:

(i)  communicate effectively with each other about the issues in dispute, and

(ii)  narrow the issues in dispute and obtain appropriate concessions, and

(iii)  reach a settlement of the matter, and

(iv)  record details of any settlement.

30 Confidentiality (cf DCR Part 24D, rule 29)

Evidence of anything said or of any admission made in a conciliation conference is not admissible in any proceedings before the District Court except:

(a)  with the consent of the parties, and

(b)  where the evidence is referred to in a conciliation certificate but only to the extent so referred, and

(c)  where the evidence is relevant to an issue as to costs.

31 Dismissal of proceedings (cf DCR Part 24D, rule 30)

(1)  The conciliator may, if the conciliator thinks fit, dismiss any proceedings if:

(a)  no party appears, or

(b)  a defendant does, but the plaintiff does not, appear.

(2)  The conciliator or the District Court may, on application by a party and on terms, restore any proceedings dismissed under subclause (1).

32 Conciliation notifications (cf DCR Part 24D, rule 31)

(1)  The conciliator is taken to have notified the parties that a dispute has been referred to conciliation when the conciliator issues a notice of listing of the conciliation conference.

(2)  The conciliator shall, within 7 days of the conclusion of the conciliation conference, advise the registrar of the fact that the conciliation conference has been concluded but not of the details thereof.

(3)  A conciliator must, within a reasonable time after the conciliation conference, issue a conciliation certificate under section 84 of the 1998 Act.

33 Guidelines (cf DCR Part 24D, rule 32)

Except to the extent of any inconsistency with these rules, or unless the District Court otherwise orders, the parties shall comply with the requirements of any Conciliation Guidelines issued by the Chief Judge.

Part 3 Medical panel procedures

34 Transferred applications (cf DCR Part 24E, rule 1A)

Applications under section 122 of the 1998 Act that have been transferred under section 7 (1) (a) of the Compensation Court Repeal Act 2002 are to be dealt with under this Part.

35 Application for reference (cf DCR Part 24E, rule 2)

(1)  An application for reference to a medical referee or medical panel pursuant to section 122 of the 1998 Act shall be lodged with the registrar together with sufficient copies for every respondent to the application.

(2)  The registrar shall endorse on or attach to the application and on sufficient copies of the application a notice containing the following matter:

(a)  that any respondent to the application who objects to the reference applied for may, within 21 days from the date of the notice, request that the application be listed before the registrar for argument and determination,

(b)  that any such request shall be made in accordance with clause 7 (1) (i),

(c)  that, in certain circumstances, a certificate or determination of a medical referee or medical panel may be conclusive evidence of the worker’s condition,

and shall send a copy of the application so endorsed to every respondent to the application.

(3)  In the application of section 122 of the 1998 Act for the purposes of section 122 (12) of that Act, section 122 (2) of that Act shall be construed as requiring any application to be made jointly by the worker and the employer.

36 Order for report (cf DCR Part 24E, rule 3)

Where an order is made by the District Court or a conciliator referring a matter to a medical referee or medical panel for report pursuant to section 124 of the 1998 Act, the registrar shall, as soon as practicable, refer all relevant court papers and supporting material to the medical referee or medical panel for a report to be furnished in accordance with the terms of reference.

37 Reports for medical panels (cf DCR Part 24E, rule 4)

Additional medical reports in respect of applications under section 122 of the 1998 Act shall be filed not later than 7 days prior to the date set for the medical examination.

38 Certificate (cf DCR Part 24E, rule 5)

(1)  A certificate given under section 122 (5) of the 1998 Act shall be in or to the effect of the approved form.

(2)  The registrar shall as soon as practicable after receiving a certificate furnish a copy to each party to the application.

Part 4 Special Statutory Compensation List

39 Proceedings under the Special Statutory Compensation Acts (cf DCR Part 24F, rule 1)

(1)  In this Part:

List means the Special Statutory Compensation List.

proceedings includes proceedings on an appeal and proceedings on an application.

proceedings under the Acts means proceedings under any of the following provisions:

(a)  Police Regulation (Superannuation) Act 1906, section 21,

(b)  Police Act 1990, section 216A,

(c)  Sporting Injuries Insurance Act 1978, section 29,

(d)  Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, section 16 or 30,

(e)  Workers’ Compensation (Dust Diseases) Act 1942, section 8I.

(2)  This Part applies to proceedings under the Acts whether commenced in the District Court or transferred from the Compensation Court.

(3)  Where there is an inconsistency in the operation of these rules and the provisions of this Part, the provisions of this Part shall apply.

40 Commencement of proceedings (cf DCR Part 24F, rule 1A)

Subject to these rules, proceedings under the Acts must be commenced by statement of claim.

41 Special Statutory Compensation List (cf DCR Part 24F, rule 2)

(1)  The registrar for Sydney shall maintain a Special Statutory Compensation List and shall enter into that List any proceedings under the Acts as soon as the proceedings are commenced or transferred under section 7 (1) (a) of the Compensation Court Repeal Act 2002.

(2)  The statement of claim in proceedings under the Acts shall bear in the heading the words “Special Statutory Compensation List”, and shall be in the approved form.

(3)  If a statement of claim in proceedings under the Acts is lodged with a registrar for a proclaimed place other than Sydney, the registrar at that other place shall forward the statement of claim to the registrar for Sydney for filing and entry in the List.

(4)  Proceedings under the Acts, and any ancillary proceedings, may be set down for hearing at any proper place.

42 Directions (cf DCR Part 24F, rule 3)

(1)  Where any proceedings are entered in the List, the registrar shall, as soon as convenient and not later than 3 months after the filing of a statement of claim, list the proceedings before a Judge (appointed by the Chief Judge for the control of proceedings in the List) for directions under this clause, and shall advise the parties of the listing.

(2)  Where any proceedings are before a Judge for directions under this clause, the Judge may give such directions as may be thought fit concerning the preparation of the proceedings for hearing, the conduct of the hearing and the adducing of evidence at or before the hearing.

(3)  Without limiting the generality of subclauses (1) and (2), directions which may be given under this clause include directions as to the times within which, and the modes in which, particulars are to be given, documents are to be prepared and exchanged, documents are to be inspected, a further directions hearing and an order fixing a hearing date.

(4)  A direction given under this clause, and an order made in respect of non-compliance with such a direction, shall apply notwithstanding any time, mode, or penalty for non-compliance otherwise fixed by the rules or the practice of the District Court.

(5)  In this clause:

document includes an affidavit or statement of evidence and experts’ reports (including any made by a medical practitioner).

43 Expert evidence and hospital reports (cf DCR Part 24F, rule 4)

The provisions of Division 2 of Part 31 apply to proceedings in the List subject to the following modifications:

(a)  each party to proceedings must, as soon as possible after their receipt and at least 28 days before any hearing date is allocated to the proceedings, serve experts’ reports and hospital reports on each party who has an address for service in the proceedings,

(b)  a party who requires the attendance of a person for cross-examination under rule 31.19 must inform the District Court and all other parties to the proceedings that the party has done so or wishes to do so at a directions hearing before any hearing date is allocated to the proceedings.

44 Oral expert evidence (cf DCR Part 24F, rule 5)

(1)  Unless the District Court otherwise orders, where a party has served reports by more than one expert in the same field, that party shall not call more than one of those experts to give oral evidence.

(2)  This clause does not affect:

(a)  the right of a party to tender reports by more than one expert in the same field, or

(b)  the right of a party to require an expert to attend for cross-examination.

45 Settling of orders (cf DCR Part 24F, rule 6)

(1)  Where the District Court gives a decision or makes a final order disposing of any proceedings in the List, the registrar shall as soon as convenient prepare and settle a form engrossing the decision or order.

(2)  The registrar shall sign and seal any form of decision or order settled by him or her, and as soon as practicable cause a copy to be forwarded to each party to the proceedings.

Part 5 Costs in Coal Miners’ Workers Compensation List and Special Statutory Compensation List matters

46 Application (cf DCR Part 39B, rule 1)

(1)  The provisions of this Part apply subject to their terms, to proceedings entered in the Coal Miners’ Workers Compensation List and the Special Statutory Compensation List in respect of costs payable or to be assessed under any order of the Court or under these rules.

(2)  Where there is an inconsistency in the operation of these rules and the provisions of this Part the provisions of this Part shall apply.

(3)  The application of these rules and of this Part is subject to:

(a)  the District Court Act 1973, and

(b)  the Workers Compensation Acts and the regulations made under those Acts, and

(c)  a Special Statutory Compensation Act and the regulations made under that Act, and

(d)  the Legal Profession Act 2004 and the regulations made under that Act.

47 Interpretation (cf DCR Part 39B, rule 2)

In this Part, and unless the context or subject matter otherwise indicates or requires, a reference to costs is a reference to costs payable between party and party in respect of proceedings, including disbursements.

48 Time for dealing with costs (cf DCR Part 39B, rule 3)

The Court may in any proceedings exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings.

49 Claimant’s costs (cf DCR Part 39B, rule 4)

Where in any proceedings the Court makes a final order, or gives a final decision, in favour of the claimant, the claimant shall, unless the Court otherwise orders, be entitled to recover the claimant’s costs of the proceedings against the employer against whom the final order or decision was made or given.

50 Redemption cases (cf DCR Part 39B, rule 5)

Where an employer commences proceedings for redemption under section 15 of the Workers’ Compensation Act 1926, as preserved by Part 18 of Schedule 6 to the Workers Compensation Act 1987, with the consent of the claimant, the employer shall, unless the Court otherwise orders, pay the costs of the claimant of the proceedings whatever be the result of the proceedings.

51 Costs where other proceedings (cf DCR Part 39B, rule 6)

Where in any proceedings a claimant is entitled to recover costs against an employer or insurer, those costs shall not be reduced or apportioned because any part of them was incurred also in respect of proceedings under the Uninsured Liability and Indemnity Scheme, or in respect of proceedings against another person against whom no award has been made, except to the extent that any such part has been received by the claimant.

52 Assessed costs and other provisions (cf DCR Part 39B, rule 7)

(1)  Subject to this Part, where, by or under these rules or any order of the Court, costs are to be paid to any person, that person shall be entitled to assessed costs.

(2)  Where the Court orders that costs be paid to any person, the Court may, at any time prior to the costs being referred for assessment, further order that, as to the whole or any part (specified in the order) of the costs, instead of assessed costs, that person shall be entitled to:

(a)  a proportion specified in the order of the assessed costs, or

(b)  the assessed costs from or up to a stage of the proceedings specified in the order, or

(c)  a gross sum specified in the order instead of the assessed costs.

53 Preliminary discovery (cf DCR Part 39B, rule 8)

The Court may in any proceedings require any person to pay the costs of any party of proceedings under Part 5 of these rules (Preliminary discovery and inspection) in respect of those proceedings including payments of conduct money and payments on account of expenses and loss under that Part.

54 Agreement as to costs (cf DCR Part 39B, rule 9)

(1)  Where costs are payable by one party to another, those parties may agree as to the amount of the costs.

(2)  An amount of costs agreed to under subclause (1) shall not be included in any process of enforcement unless the agreement is embodied in a form of order bearing the consent of the party required to pay the costs and lodged for the signature of the registrar.

55 Agreement as to part of costs (cf DCR Part 39B, rule 10)

(1)  Notwithstanding anything in this Part, where costs are payable by one party to another, the parties may agree as to the amount of those costs payable in respect of any item or items of work done.

(2)  An amount of costs agreed to under subclause (1) shall not be included in any process of enforcement unless the agreement is embodied in a form of order bearing the consent of the party required to pay the costs and lodged for the signature of the registrar.

56 When costs payable (cf DCR Part 39B, rule 11)

(1)  Where, before the conclusion of any proceedings, the Court makes an order for the payment of costs or a motion is refused with costs, the costs shall not, unless the Court otherwise orders, be payable until after the conclusion of the proceedings.

(2)  Where, in any proceedings, it appears to the registrar, on application, that there is no likelihood of any further order being made in the proceedings, the registrar may order that any costs ordered to be paid shall be payable forthwith.

57 Party and party basis (cf DCR Part 39B, rule 12)

Costs payable by or under these rules or any order of the Court shall be payable on a party and party basis unless these rules or an order provide that they are payable on an indemnity basis.

58 Indemnity basis (cf DCR Part 39B, rule 13)

On an assessment on the indemnity basis, all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred, and any doubts which the assessor may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the receiving party.

59 Costs order to confirm earlier costs orders (cf DCR Part 39B, rule 14)

An order as to costs made in proceedings after 30 June 1994 shall unless the Court otherwise orders, be taken to expressly confirm all earlier orders as to costs made in the proceedings.

sch 11: Ins 2008 (338), Sch 1 [24]. Am 2009 (501), Sch 1 [15].

Dictionary

(Rule 1.2)

active party, in relation to any proceedings, means a party who has an address for service in the proceedings, other than:

(a)  a party against whom judgment has been entered in the proceedings, or

(b)  a party in respect of whom the proceedings have been dismissed, withdrawn or discontinued,

being, in either case, a party against whom no further claim in the proceedings subsists.

approved form, in relation to a document, means the form approved under section 17 of the Civil Procedure Act 2005 for the purposes of that document.

authorised DX system means the document exchange operated by Toll Transport Pty Ltd (ACN 006 604 191) trading as DX Mail.

business name means a name, style, title or designation under which a business is conducted (not being the name or names of the persons by whom the business is conducted), and includes such a name, style, title or designation whether or not it is registered under the Business Names Act 2002 or under Part 3 of the Partnership Act 1892.

costs assessor’s certificate means a certificate issued under Division 11 of Part 3.2 of the Legal Profession Act 2004 in relation to a determination of costs under that Division.

Note—

Pursuant to clause 3 of Schedule 9 to the Legal Profession Act 2004, a costs assessor’s certificate issued under the Legal Profession Act 1987 is taken to be a costs assessor’s certificate issued under the Legal Profession Act 2004.

defamation defence means:

(a)  any defence to the publication of defamatory matter under the Defamation Act 1974 or the Defamation Act 2005, or

(b)  any other defence or exclusion of liability available to a defendant apart from those Acts for the publication of defamatory matter (whether at common law or under any other legislation).

default judgment means judgment given under Part 16.

document includes any part of a document and any copy of a document or part of a document.

DX address, in relation to a person having a DX box in an authorised DX system, means the address of the DX box.

DX box means an exchange box in an authorised DX system.

Hague Convention—see rule 11A.1.

imputation in question, in relation to any defamation defence, means the imputation to which the defence is pleaded.

interest up to judgment means interest under:

(a)  section 100 of the Civil Procedure Act 2005, or

(b)  section 73 of the Motor Accidents Act 1988, or

(c)  section 137 of the Motor Accidents Compensation Act 1999, or

(d)  section 151M of the Workers Compensation Act 1987.

liquidated claim includes a claim for interest up to judgment.

liquidator includes a provisional liquidator.

mediation session means a meeting arranged for the mediation of a matter, and includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session.

officer of the court does not include a barrister, solicitor or liquidator.

Note—

See rule 1.3 for the definitions of barrister and solicitor.

opposite party means defendant (in relation to a plaintiff) and plaintiff (in relation to a defendant).

order for examination means an order for examination under section 108 of the Civil Procedure Act 2005.

pleading includes a statement of claim, defence, reply and any subsequent pleading for which leave is given under Part 14, but does not include a summons or notice of motion.

principal officer, in relation to a corporation, means:

(a)  the chairman or president (however described) of the governing body of the corporation, or

(b)  the general manager, chief executive officer or other person (however described) having general management of the affairs of the corporation, or

(c)  the secretary, treasurer or other person (however described) having the general function of accepting correspondence on behalf of the corporation.

privileged document means a document that contains privileged information.

privileged information means any of the following information:

(a)  information of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, be adduced in the proceedings over the objection of any person,

(b)  information that discloses a protected confidence, the contents of a document recording a protected confidence or protected identity information (within the meaning of section 126B of the Evidence Act 1995) where:

(i)  consent by the protected confider (within the meaning of section 126C of that Act) has not been given to disclosure of the confidence, contents or information, and

(ii)  section 126D of that Act would not operate to stop Division 1A of Part 3.10 of that Act from preventing the adducing of evidence in respect of the confidence, contents or information,

(c)  information of which evidence could not be adduced in the proceedings by virtue of the operation of section 126H of the Evidence Act 1995,

(d)  information that tends to prove that a party by whom a document is required to be made available, or by whom an interrogatory is to be answered, under section 128 of the Evidence Act 1995 or section 87 of the Civil Procedure Act 2005:

(i)  has committed an offence against or arising under an Australian law or a law of a foreign country, or

(ii)  is liable to pay a civil penalty,

(e)  information the admission or use of which in a proceeding would be contrary to section 129 of the Evidence Act 1995,

(f)  information that relates to matters of state within the meaning of section 130 of the Evidence Act 1995,

(g)  information to which section 131 of the Evidence Act 1995 applies,

(h)  information:

(i)  the disclosure of the contents of which, or

(ii)  the production of which, or

(iii)  the admission or use of which,

in the proceedings would be contrary to any Act (other than the Evidence Act 1995) or any Commonwealth Act (other than the Evidence Act 1995 of the Commonwealth),

but does not include information that the court declares not to be privileged information for the purposes of those proceedings.

proceeds of enforcement of a writ for the levy of property means the proceeds derived from the enforcement of the writ under Division 2 of Part 8 of the Civil Procedure Act 2005.

professional negligence means the breach of a duty of care or of a contractual obligation in the performance of professional work or in the provision of professional services by a medical practitioner, an allied health professional (for example, dentist, chemist, physiotherapist), a hospital, a solicitor or a barrister.

professional negligence claim means a claim for damages, indemnity or contribution based on an assertion of professional negligence.

registered business name means a business name that is registered under the Business Names Act 2002 or under Part 3 of the Partnership Act 1892.

registry means the registry of the relevant court.

relief includes remedy.

senior officer, in relation to a corporation, includes the principal officer of the corporation and any other person who (whether alone or with others) has powers of management, direction or control of the corporation.

solicitor on the record, in relation to any party to proceedings, means the solicitor who is for the time being named as the party’s legal representative in the documentation for the proceedings.

tutor, in relation to a person under legal incapacity, means a tutor appointed to represent the person (whether by the court or otherwise) in accordance with Division 4 of Part 7.

Uninsured Liability and Indemnity Scheme means the scheme constituted under Division 6 of Part 4 of the Workers Compensation Act 1987.

unregistered business name means a business name that is not registered under the Business Names Act 2002 or Part 3 of the Partnership Act 1892.

unrestricted practising certificate has the same meaning as it has in the Legal Profession Act 2004.

witness statement means a statement referred to in rule 31.4.

Note—

The following words and expressions are defined in the Civil Procedure Act 2005, either for the purposes of that Act generally or for the purposes of particular portions of that Act, and consequently have the same meanings in these rules:

chargee (Part 8) charging order (Part 8) civil proceedings claim for relief costs court criminal proceedings cross-claim defendant exercise financial institution (Part 8) function garnishee (Part 8) garnishee order (Part 8) goods (Part 8) hearing

instalment order (Part 8) judgment judgment creditor judgment debt judgment debtor judicial officer jurisdictional limit local rules minor motor accident claim officer order for examination (Part 8) ordinary basis originating process

person under legal incapacity plaintiff possession trial tutor uniform rules Uniform Rules Committee wage or salary (Part 8) workplace injury damages claim writ for the levy of property (Part 8) writ of delivery (Part 8) writ of execution (Part 8) writ of possession (Part 8)

Dictionary: Am 2005 (625), Sch 1 [21]; 2005 (807), Sch 1 [8]; 2006 (716), Sch 1 [33]; 2007 (327), Sch 1 [21]; 2008 (338), Sch 1 [25]; 2009 (88), Sch 1 [20]; 2009 (326), Sch 1 [14].